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HomeMy WebLinkAboutProvisional Adoption of Ordinance No. 1770, revising BMC 10.32.410 authorizing immobilization and Impoundment of Vehicles Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Rich McLane, Lieutenant Chief Mark Tymrak, Chief of Police Chris Kukulski, City Manager SUBJECT: In conjunction with Bozeman Parking Commission resolution PC 2009-01 recommending approval of Ordinance 1770, provisionally adopt Ordinance 1770, revision to Bozeman Municipal Code (BMC) Chapter 10.32, Section 410, to include guidance related to the issuance of citations and violation notices and to include authorizing the immobilization (booting) and impoundment of vehicles and providing for due process and to establish that tampering with or removal of an immobilization device is a misdemeanor offense. MEETING DATE: October 12, 2009 AGENDA ITEM TYPE: Action RECOMMENDATION: Conduct a public hearing and suggest changes to Ordinance 1770, if applicable. Consider a motion provisionally adopting Ordinance 1770, including Commission amendments and conditions. BACKGROUND: The City of Bozeman has taken numerous measures to protect the public health, safety, and general welfare of the citizens and residents of Bozeman regarding parking issues and providing for orderly parking of motor vehicles upon the public ways of the City of Bozeman, as authorized by 61-12-101, MCA. As part of this management, the parking enforcement has evolved over the years. The City commission created a parking commission, to provide for jurisdiction and control over specified areas of the city, particularly the Downtown B-3 Zoning District, Bozeman High School Residential Parking District and MSU Residential Parking District, while maintaining jurisdiction regarding parking enforcement in all other areas of the City. In July 2007, the City enacted legislation making all parking violation civil municipal infractions. Numerous provisions have been included in Title 10 of the Bozeman Municipal Code to regulate parking, including the issuance of fines for violations. Parking enforcement officers issue citations for violations of these parking laws in an effort to deter unsafe parking, provide all citizens fair opportunity to free parking and to provide for identification and removal of junk or abandoned vehicles. At all steps along the way, alleged violators are provided with due process to address a parking citation issued to them. However, while ensuring that due process is provided for those alleged violators that wish to contest a citation is important; it is equally important that those violators that continue to commit parking infractions handle those violations properly. Most citizens would agree that a lack of 316 fundamental fairness exists when some citizens pay parking citations in a timely manner, while others ignore the citations given them. This can lead to a perceived lack of enforcement and a system that appears to punish those citizens trying to respond in an appropriate manner, while rewarding others for ignoring citations issued them. Currently, there are 10,716 outstanding citations from 2001 to July, 2007. Prior to July, 2007, parking citations were criminal in nature, and of those outstanding citations listed, 6,175 were issued a summons and complaint. Current introduction of using a collections agency has helped with some of these unpaid citations, but since July 2007, there are still a number of violators that continue to commit violations and not pay their citations. Currently there are 125 violators with 6 or more unpaid citations, or a total of 1,353 citations and $43,125 in unpaid fines. All of these listed fines do not include additional administrative fees of at least $15/citation, or a total in excess of $250,000 in unpaid citations. Of equal importance however, is the incentive for future violations to be paid or appealed, rather than ignored, with the unwanted negative consequence of having a vehicle immobilized, impounded or even possibly sold to recoup fines. Ordinance 1770 provides the City of Bozeman a tool to address some of these concerns. A focus on improving the allowance of adequate due process for violators at all aspects of the enforcement process is part of this ordinance, to include the additional ability of the City of Bozeman to immobilize (boot) and impound those violators that have six (6) or more unpaid parking citations. Numerous cities across the state and nation have resorted to immobilization and impound as part of their overall parking enforcement, with each of them indicating the use of immobilization has increased both the collection of fines and compliance with parking regulation increases. Some of these cities include: City Immobilization Criteria Syracuse, NY 3 or more unpaid citations Atlanta, GA 3 or more unpaid citations Springfield, IL $250 outstanding fines University of Virginia 2 or more unpaid citations Boston, MA 3 or more unpaid citations Billings, MT $50 outstanding fines Great Falls, MT 3 or more unpaid citations Kalispell, MT 3 or more unpaid citations Boston, MA authorities reported an increase from 40% compliance with payment of parking citations prior to the implementation of immobilization, to 90% compliance, with the majority of compliance not related directly to actual immobilization, but more to the mere “threat of immobilization”. While each city has slight variances in their specific ordinances, there are several common approaches seen, to include: · Minimum threshold to boot (ranging from 2+ to outstanding fine amount). · All provide due process or hearing to address both fines assessed and immobilization. · Assessment of impound fee ranging from $25 to $150. · Notification requirement to vehicle owner prior to allowing immobilization to occur. · Release of vehicle allowed only after all fines, administrative costs, immobilization fees and impound fees paid by registered owner of vehicle. 317 In the case of immobilization or impoundment, significant private interests are at stake including that a person’s ability to make a living and a person’s access to both the necessities and amenities of life may depend upon the availability of a vehicle. A citizen incurs the risk of losing access to their vehicle only after the accrual of substantial violations and significant opportunities to either pay fines and fees associated with the violations or contest those violations through available procedures. Furthermore, the risk of an erroneous deprivation is significantly reduced as not less than six violations must be issued by the City to the owner or operator of a vehicle subject to immobilization, with reminder letters sent to an owner when in violation, and a pre-immobilization/impoundment notice is sent offering the person an opportunity to pay all outstanding violations, thus avoiding immobilization or impoundment. Prior to an actual immobilization or impound, a vehicle owner will have numerous opportunities to address or contest a violation. One citation alone includes the following opportunities to address: Initial citation: Placed on the vehicle, with notice of how to pay or contest the citation, to include advisement that failure to pay will result in a $20 administrative fee and possibility of immobilization. Appeal: Citizen may complete appeal of violation prior to formal hearing in Municipal Court. This appeal involves input from the citizen and a review involving both the officer issuing the citation and their supervisor. 10-day reminder: Reminder letter indicating the fine has not been paid, $20 administrative fee has been added and possibility of immobilization. Summons/complaint: Formal service to the owner that now introduces the violation into Municipal Court and allows the owner to pay or respond and further advises of possibility of immobilization. If at this stage the vehicle owner has failed to respond and there are 6 unpaid violations, a final letter is sent to the registered owner advising their vehicle is now subject to immobilization and/or impound. Potentially Nineteen (19) or more different notifications to the owner will have occurred before even an immobilization would be authorized. You have been provided with a full-copy of the proposed ordinance, but some areas addressed specifically include: · Clarification that the initial parking citation is a municipal infraction. · Mandates specific language on the notice of municipal infraction, to include fine amount, method to appeal, possibility of additional costs if not paid and notification of immobilization of vehicle, if municipal infraction. · Administrative appeal procedures defined, as previously described in this memorandum. · Clarification that service of a municipal infraction consists of certified mail, return- receipt requested for purposes of later immobilization or judgment requests. 318 o Establishing that the City may immobilize using any immobilization device (i.e. a “boot”) any vehicle while parked legally or illegally upon the ways of the city open to the public when: § The vehicle is subject to six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 regarding that vehicle; § An owner of the vehicle has six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 and those violations were issued for any vehicle the person currently owns or has owned; or § A Municipal Judge has ordered the vehicle immobilized or impounded. · Establishing a requirement that prior to an actual immobilization of a vehicle, notice shall be sent to the registered owner allowing them a final ten (10) business days to either pay the unpaid violations or contest the determination that the vehicle is subject to immobilization in Municipal court. · Establishing the number of violations that may considered in determining the number of violations that subject a vehicle to immobilization to: § All violation(s) occurring after July 1, 2007; § Any violation(s) occurring prior to July 1, 2007 wherein a summons and compliant has been lawfully served on the vehicle owner; and § Any violation(s) of this Chapter for which a judgment has been entered by the Bozeman Municipal Court as long as the judgment occurred no more than ten (10) years prior to the date the notice of a pending immobilization is sent pursuant to 10.32.H.2. · Setting an immobilization fee of One Hundred Fifty Dollars ($150), designed to cover additional administrative costs related to the actual boot, impound and release procedures incurred by the City of Bozeman. · Requiring at the time a vehicle is immobilized, that the City shall conspicuously affix to the vehicle a written notice via a highly visible sticker or other material with an adhesive backing that can be fastened to the driver-side window advising the owner of the release procedures, to include the ability to contest the immobilization. · Establishing a minimum twenty-four (24) period of immobilization before the City may proceed to impound the vehicle. · Providing for removal of unattended vehicles when that vehicle constitutes an obstruction to the safe and efficient removal of snow, ice, other weather caused obstructions or the vehicle must be removed to facilitate the repairs or replacement of City services. · Establishing that prior to the immobilized or impounded vehicle being released, all costs associated with the vehicle must be paid, or bond posted, prior to release. · Establishing hearing procedures for a citizen that wishes to contest the immobilization or impound. · Mandating that tampering, damaging or removing the immobilization device constitutes a separate, misdemeanor offense. On October 1, 2009, the Bozeman Parking Commission adopted Resolution PC2009-01 adopting Ordinance 1770 as a parking regulation and requests the City Commission adopt this Ordinance for each of Parking Commission’s districts and for all other areas of the City. 319 On adoption of Ordinance 1770, the establishment of processes will be in place that sufficiently balance the City’s need for efficiency in collecting parking fines, including the duty to taxpayers to minimize administrative processes involved with collection of unpaid parking fines and the need to ensure fairness to those citizens who do pay their parking citations with the possibility of immobilization or impound for those vehicle owners who fail to pay or contest their parking citations, with adequate due process safeguards established for all parties at all steps along the way. On approval, this ordinance would be effective February 1, 2010, providing adequate time for those citizens with unpaid violations to pay their fines and allow for City of Bozeman staff time to make necessary operational changes and related public awareness. FISCAL EFFECTS: The adoption of this ordinance will necessitate the purchase of two (2) or more immobilization devices, at a price each of $550. Additionally costs related to the reprinting of manual parking citations and immobilization notices has not been determined, but are expected to cost approximately $4,000 initially. All of these costs are off-set by expected increases in outstanding parking fine revenue received as a result of the ordinance authority. ALTERNATIVES: As suggested by the City Commission. Attachments: Ordinance 1770 BPC Resolution PC2009-01 6 or more violations summary sheets Report compiled on: October 5, 2009 320 Page 1 of 16 Ordinance No. 1770 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING SECTION 10.32.400 OF THE BOZEMAN MUNICIPAL CODE (BMC) TO RECOGNIZE VIOLATIONS OF CHPT. 10.32, BMC ARE CIVIL VIOLATIONS EXCEPT FOR VIOLATIONS OF NEW PROVISION 10.32.410.L; AMENDING SECTION 10.32.410, BMC TO INCLUDE PROVISIONS RELATED TO ISSUANCE OF CITATIONS AND VIOLATION NOTICES; AMEND SECTION 10.32.410, BMC TO INCLUDE PROVISIONS AUTHORIZING THE IMMOBILIZATION (BOOTING) AND IMPOUNDMENT OF VEHICLES AND PROVIDING FOR DUE PROCESS FOR VIOLATIONS OF CHAPTER 10.32, BMC; AMEND SECTION 10.32.410 TO INCLUDE PROVISIONS STATING TAMPERING WITH OR REMOVAL OF AN IMMOBILIZATION DEVICE IS AN ABSOLUTE LIABILITY CRIME PUNISHABLE AS A MISDEMEANOR; AND PROVIDING AN EFFECTIVE DATE OF FEBRUARY 1, 2010. WHEREAS, Sect. 61-12-101(1), MCA, authorizes the City of Bozeman to regulate the standing and parking of vehicles; and WHEREAS, Title 7, Chpt. 14, Part 46, authorizes the Bozeman City Commission to create a Parking Commission which was done and whose powers are created pursuant to Resolutions 1676, 1839, 3803, and 3976; and WHEREAS, Sect. 7-14-4608, MCA, states the resolutions creating a parking commission “shall clearly specify areas within the city… over which the commission and the city, respectively, are to have jurisdiction and control; and WHEREAS, pursuant to city Resolution 3803, the Bozeman Parking Commission has jurisdiction over three parking districts: the downtown B-3 Zoning District, the Montana State 321 Page 2 of 16 University Residential Parking District, and the Bozeman High School Residential Parking District; and WHEREAS, the Bozeman City Commission has jurisdiction regarding parking enforcement in all other areas of the City; and WHEREAS, Sect. 7-14-4622(7), MCA, authorizes the Parking Commission, having been vested the authority by the City Commission, to “regulate onstreet parking when it remains in use, in coordination with offstreet parking, subject to traffic regulations imposed by the state;” and WHEREAS, Sect. 7-14-4628 authorizes the Parking Commission to issue regulations for onstreet parking related to the determination of parking locations, variable parking durations, variable parking rate schedules, and enforcement policies and procedures; and WHEREAS, the Bozeman Parking Commission adopted Resolution PC2009-01 adopting this Ordinance as a parking regulation for each of its three districts and requests the City Commission adopt this Ordinance for each of Parking Commission’s districts and for all other areas of the City; and WHEREAS, the City Commission of the City of Bozeman finds that concerns regarding the public health, safety, and general welfare of the citizens and residents of Bozeman requires the establishment of ordinances for the orderly parking of motor vehicles upon the public ways of the City of Bozeman; and WHEREAS, the City of Bozeman has adopted numerous provisions included in Title 10 of the Bozeman Municipal Code to regulate parking, including the issuance of fines for violations; and 322 Page 3 of 16 WHEREAS, the Commission finds the issuance of citations to those who violate the parking ordinances of the City of Bozeman and the processing of citations must be done in a manner that affords adequate due process to alleged violators; and WHEREAS, the City Commission recognizes that inequity and a lack of fundamental fairness exists when some citizens pay parking citations in a timely manner while others ignore the citations due to a perceived lack of enforcement; and WHEREAS, the City Commission desires to create a system of enforcement that allows violators adequate due process to address concerns over the validity of parking tickets including the option for an administrative appeal and an opportunity to address a violation before the Bozeman Municipal Court; and WHEREAS, the City Commission desires to create an enforcement program that, upon adequate due process, allows the immobilization (i.e. “booting”) of vehicles with an certain amount of unpaid violations of Chapter 10.32 against the vehicle or the vehicle owner and that also allows for the impoundment of vehicles under certain circumstances; and WHEREAS, in the case of immobilization or impoundment, the Commission understands significant private interests are at stake including that a person’s ability to make a living and a person’s access to both the necessities and amenities of life may depend upon the availability of a vehicle yet the Commission finds a citizen incurs the risk of losing access to their vehicle only after the accrual of substantial violations and significant opportunities to either pay fines and fees associated with the violations or contest those violations through available procedures; and WHEREAS, the Commission recognizes that due to the process required prior to immobilization or impoundment, the risk of an erroneous deprivation is significantly reduced as 323 Page 4 of 16 not less than six violations must be issued by the City to the owner or operator of a vehicle subject to immobilization, reminder letters are sent to an owner when in violation, and a pre- immobilization/impoundment notice is sent offering the person an opportunity to pay all outstanding violations thus avoiding immobilization or impoundment and as such there is adequate notice that failure to pay outstanding citations may result in immobilization or impoundment; and WHEREAS, the Commission finds that towing and impoundment of vehicles is warranted under certain circumstances including those related to repair of city services, when necessitated by clearing streets due to weather conditions, or when an immobilization device is placed upon a vehicle but the owner does not address the requirements for removal of the device within a specified time frame; and WHEREAS, the risk of an erroneous deprivation of a person’s property interest is also significantly reduced because the ordinance provides for an administrative appeal process available to any person cited for a parking violation and this appeal process is specifically designed to address erroneous citations; and WHEREAS, the Commission finds additional procedures in place adequately safeguard against an erroneous immobilization or impoundment and those additional safeguards include the requirements that the City send, prior to immobilization or impoundment, a written notice to a vehicle owner that the vehicle has accumulated the required number of violations and is thus subject to pending impoundment or immobilization, and furthermore the safeguard that the owner may prevent impoundment or immobilization by paying the notices of municipal infraction or appealing the notice to the Bozeman Municipal Court is in place to protect the interests of the vehicle owner; and 324 Page 5 of 16 WHEREAS, the Commission finds the processes in place sufficiently balance the City’s need for efficiency in collecting parking fines, including the duty to taxpayers to minimize administrative processes involved with collection of unpaid parking fines and the need to ensure fairness to those citizens who do pay their parking citations with the likelihood that citizens will contest the determination that their vehicle has received enough tickets to be immobilized or impounded; and WHEREAS, in the case of immobilization or impoundment, the Commission finds the interest of the City of Bozeman is great in imposing the costs of immobilization or impoundment upon the vehicle owner in that taxpayers should not subsidize the enforcement of the City’s parking requirements; and WHEREAS, the City Commission recognizes due process requires sufficient notice to a person that immobilization or impoundment of their vehicle is possible, provides for the ability to recover property immobilized or impounded through bonding, and provides for an adequate and timely post-deprivation hearing before the Bozeman Municipal Court and that this ordinance provides for the above; and WHEREAS, the Commission determines it is in the public interest that when a person tampers with or removes an immobilization device, when a person relocates the immobilization device from its original installation position, causes damage of any kind to the immobilization device or removes a vehicle with an immobilization device attached from the vehicles location at the time the immobilization device was attached the person should be absolutely liable for a criminal offense and should be prosecuted to the fullest extent of the law for a misdemeanor and shall, if convicted, be punished by a fine not to exceed $500 and six (6) months in the Gallatin County Detention Center; and 325 Page 6 of 16 WHEREAS, the Commission finds it to be in the public interest that the criminal acts described above are acts that a reasonable person, having been given adequate notice of a pending impoundment, should not take and as such, the Commission specifically determines the acts described above should be acts of absolute liability and no mental state need be proven. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Section 10.32.400 of the Bozeman Municipal Code be amended to read as follows, with additions underlined and deletions stricken: 10.32.400 Legislative Intent It is the intent of the City Commission that the criminal offenses violations listed in this chapter, except for a violation of 10.32.410(L) (tampering with or removal of an immobilization device), are offenses involving absolute civil liability and are considered municipal infractions under Chpt. 1.24 of this code. It is also the intent of the City Commission that a violation of 10.32.410(L) is a misdemeanor criminal offense of absolute liability and Those offenses shall not require proof of any of the mental states described in subsections (33), (37) and (58) of Section 45-2-101, MCA. (Ord. 134, §6, 1992; Ord. 1140, § 1 (part), 1983; Ord. 1126 § 2, 1983. Section 2 That the following is hereby added to Section 10.32.410 of the Bozeman Municipal Code: C. Municipal Infraction for Improperly Parked Vehicle. 1. If any motor vehicle is found to be in violation of any provision of this Chapter, the vehicle may be cited for the appropriate parking violation. The citation shall be in the form of a notice of municipal infraction pursuant to 1.24, BMC. The City of Bozeman employee issuing the notice of municipal infraction shall note the vehicle’s license plate or vehicle identification number and any other information concerning the vehicle that will identify it and, if the driver is not present, shall conspicuously affix to the vehicle a notice of the parking violation, or alternatively serve directly on the owner/operator of the vehicle in person or forward the citation by regular mail with delivery confirmation requested to the registered owner. 326 Page 7 of 16 2. The registered owner of a vehicle at the time the violation occurred shall be liable for all fines, fees and penalties related to the specific violation(s) or to previous violation(s) which the registered owner has not paid. 3. The registered owner at the time a vehicle is found to be in violation of any provisions of this Chapter shall remain liable for all violations despite having subsequently sold, transferred, or otherwise conveyed the vehicle. D. Notice of Municipal Infraction. 1. The form of the notice of the municipal infraction shall be designated by the City, but shall contain in substance the following information: i. A statement that the notice of the municipal infraction represents a determination that a violation of this Chapter has been committed by the owner or user of the vehicle and that the determination shall be final unless contested as provided by this Chapter; ii. A statement that failure to pay a violation may result in immobilization and/or impoundment of the vehicle for which the owner may be liable for a penalty, administrative fees, including towing, handling and storage costs; iii. A statement of the specific provision of this Chapter violated and for which the citation was issued; iv. A statement of the monetary penalty established for the parking violation, including that the violation may subject the owner to additional administrative fees if not paid within ten (10) working days of the date of issuance of the citation; and v. A statement of the options provided herein for responding to the notice and the procedures necessary to exercise these options. 2. The notice of municipal infraction represents a determination that a municipal infraction has been committed, and such determination shall be final unless contested as provided herein. 3. Nothing herein shall be deemed to invalidate any previous notice or citation issued by the City regarding a violation under this Chapter. 4. Notice of a municipal infraction affixed to a vehicle is not service of the municipal infraction as required by 1.24. Service of a municipal infraction in compliance with 1.24.020 is not required until (i) a notice of municipal infraction has not been paid within the time periods established in this Chapter or (ii) if an administrative appeal made pursuant to 10.32.410.F has been denied or modified and the time periods for paying the municipal infraction identified in 10.32.410.F have run. Service of a municipal infraction for violations of this Chapter shall be made in compliance with 10.32.410.G. 327 Page 8 of 16 E. Response to Notice of Municipal Infraction Required. 1. Any person who receives notice of a municipal infraction for a violation of this Chapter shall respond to such notice as provided herein within ten (10) business days of the date of the issuance of the notice, by either paying the penalty set forth in the notice or requesting an administrative appeal pursuant to 10.32.410.F. Within ten (10) business days if the person receiving notice fails to either pay the penalty or request an administrative appeal said failure shall result in the assessment of a $20.00 administrative fee which shall be in addition to the penalty. 2. If the owner of a vehicle cited for a parking violation has not responded to the notice of municipal infraction within ten (10) business days as provided in subsection (1) of this section, the City shall send a written notice by regular mail with delivery confirmation requested to the last known address of the registered owner of the vehicle. Such notice shall state that if the owner of the vehicle does not respond to the notice by either paying the penalty and administrative fee or by requesting in writing an administrative appeal pursuant to these procedures within ten (10) business days of the date of the notice, the owner shall be deemed to have waived his or her right to an administrative appeal and the determination that a violation was committed shall be considered final. Any person who fails to request an administrative appeal or pay the fine within the ten (10) business days of the notice described in this subsection shall be deemed to have refused to pay the fine levied by the citation and shall authorize the City to proceed to collect the fine and all administrative fees in any manner available to the City. 3. All payments made by a person regarding a notice of a municipal infraction under this Chapter shall be paid only to the City Finance Department. F. Administrative Appeal of Parking Citation. 1. Any person cited for a violation of this Chapter may contest the determination that a violation occurred by submitting to the City of Bozeman a Notice of Administrative Appeal of Parking Citation. The Notice of Appeal must contain a written statement detailing the appellant’s argument that the citation was issued in error and may include photographs, or any other information the appellant wishes to rely upon. The citing employee’s supervisor shall review the information submitted and, within twenty one (21) days of submittal of the Notice of Appeal, the City of Bozeman shall inform the appellant via regular mail with delivery confirmation requested whether the citation is affirmed, modified, or dismissed. If the citing officer’s decision is affirmed or modified, the petitioner shall have ten (10) business days from the date of mailing of the decision to pay the penalty. Failure to pay within ten (10) business day period shall result in the assessment of a $20.00 administrative fee which shall be in addition to the penalty. 328 Page 9 of 16 G. Service of a Municipal Infraction/Notice to Appear. 1. If, within the timelines established in 10.32.410.E and (F), the citation is not paid, if no administrative appeal is filed, or if the administrative appeal is denied and the penalties and fees are not paid, the City shall forward the notice of municipal infraction to the Municipal Court by serving by certified mail the municipal infraction upon the owner of the vehicle at the vehicle owner’s last known address in compliance with 1.24.020. It is the mailing of the certified letter by the City that constitutes service under 1.24.020 rather than receipt by the defendant. 2. The service shall clearly state the date, time, and location at which the person must appear before the Municipal Court. In addition, the notice shall state the date of the original citation, the nature of the violation, the amount owed, including any administrative fees, and a statement that the notice of a municipal infraction for a parking violation has not been paid and the person must therefore appear before the Municipal Court. Finally, the notice must state that failure to appear may result in an entry of judgment against the party named on the notice. 3. The Court may consider the parking citation and any other written report made under oath by the issuing City employee in lieu of the issuing employee’s appearance at the hearing. 4. Upon a finding that the defendant committed the violation by the Municipal Court Judge, or their designee, the decision shall be final, without right of appeal, in accordance with Sect. 25-30-108, MCA. 5. Payment by a defendant of any judgment on a municipal infraction entered by the Court shall be paid to the City Finance Department. H. Immobilization of Vehicle. 1. The City may immobilize using any immobilization device (i.e. a “boot”) any vehicle while parked legally or illegally upon the ways of the city open to the public when: i. The vehicle is subject to six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 regarding that vehicle; ii. An owner of the vehicle has six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 and those violations were issued for any vehicle the person currently owns or has owned; or iii. A Municipal Judge has ordered the vehicle immobilized or impounded. If immobilization is conducted pursuant to subsections (i) or (ii), above, a judgment or order of the municipal court is not required. 329 Page 10 of 16 2. Prior to immobilization, the city shall send via regular mail with delivery confirmation requested a notice to the last known address of the owner of any vehicle having six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 that the vehicle may be impounded or immobilized when located upon the ways of the city open to the public. The notice must reference all the unpaid violations of this Chapter against the vehicle or the owner and allow the person ten (10) business days from the date of mailing of the notice to pay all unpaid violations of this Chapter or contest the determination the vehicle is subject to immobilization in the Municipal Court. If the vehicle owner does not respond within ten (10) business days of the date of the mailing, the city may immobilize or impound the vehicle. 3. Only the following violations of this Chapter may be considered in determining the number of violations that subject a vehicle to immobilization: i. All violation(s) occurring after July 1, 2007; ii. Any violation(s) occurring prior to July 1, 2007 wherein a summons and compliant has been lawfully served on the vehicle owner; and iii. Any violation(s) of this Chapter for which a judgment has been entered by the Bozeman Municipal Court as long as the judgment occurred no more than ten (10) years prior to the date the notice of a pending immobilization is sent pursuant to 10.32.H.2. 4. Costs of immobilization or impoundment, including a $150.00 immobilization fee, will be assessed against the owner and must be paid prior to release. 5. At the time a vehicle is immobilized, the City shall conspicuously affix to the vehicle a written notice via a highly visible sticker or other material with an adhesive backing that can be fastened to the driver-side window containing the following information: This vehicle has been immobilized for six (6) or more unpaid violations of Title 10, Ch. 32 of the Bozeman Municipal Code or by Order of the Municipal Court. Release from immobilization may be obtained by paying all unpaid violations at City Hall, 121 N. Rouse Ave., Bozeman, or by appearing in Bozeman Municipal Court, Law & Justice Center, 615 S. 16th Ave., Suite 123, to answer to the unpaid violations. All assessed fees, including a $150.00 fee for immobilization, must be paid prior to release of this vehicle. If the vehicle remains immobilized for more than twenty-four (24) hours, the vehicle is subject to being towed and impounded as provided in 10.32.410.I, BMC, with additional fees assessed at that time. Removal or attempted removal of the immobilization device before a release is obtained is unlawful and may be punishable as a criminal offense as provided in Sect. 10.32.410.L, BMC. The owner may contest the action of immobilization and/or impoundment by filing a request for a hearing with the Bozeman Municipal Court within ten (10) business days of the immobilization/impoundment. Please call 406-582-2303 during normal business hours for information on how to release this vehicle. After hours, please call 406-582-2000. 330 Page 11 of 16 If the vehicle has been immobilized, and has remained immobilized for a period of Twenty Four (24) hours or longer, and a release has not been obtained from the City of Bozeman or the Municipal Court, then the City may impound the vehicle as provided for in 10.32.410.I. 6. Nothing herein shall prohibit the City from providing alternative methods of notice that a vehicle is subject to immobilization or that a vehicle has been immobilized. I. Removal/Impoundment of Vehicle. 1. The City, or authorized agent of the city, is authorized to remove or tow a vehicle from the ways of the city open to the public pursuant to 10.60.020 or this section to the city impound lot or to a location associated with the tow company where the vehicle will be stored until the owner of such vehicle appears and claims the same or the vehicle is sold at auction in compliance with §25-13-701, MCA, through §25-13-709, MCA, under the following circumstances: i. When any vehicle is left unattended upon any bridge/viaduct or causeway or in any tube or tunnel where such vehicle constitutes an obstruction to traffic; ii. When a vehicle is left unattended and that vehicle constitutes an obstruction to the safe and efficient removal of snow, ice, other weather caused obstructions or the vehicle must be removed to facilitate the repairs or replacement of City services; iii. When a vehicle upon a street constitutes an obstruction to traffic and the person in charge of the vehicle fails to or is unable to provide for its custody or removal; iv. Upon issuance of a judicial order for any reason include any offenses under this Title or Title 61, Montana Code Annotated; or v. Whenever any vehicle is found by the City parked or left standing in the streets or alleys of the city and: 1. The vehicle is subject to six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 regarding that vehicle; 2. An owner of the vehicle has six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 and those violations were issued for any vehicle the person currently owns or has owned; or 3. A Municipal Judge has ordered the vehicle immobilized or impounded. 331 Page 12 of 16 Prior to towing a vehicle under subsection (v), the City must have served upon the last known registered owner of the vehicle a final written notice in a similar form to that required in 10.32.410.H. 2. Whenever a city employee authorizes the removal of a vehicle from the ways of the city open to the public as authorized in this section (H) and the employee removing the vehicle knows or is able to ascertain from the registration records on the vehicle the name and address of the owner thereof, and in compliance with §61-12-402, MCA, such officer shall send a notice by certified mail within seventy two (72) hours to such owner and lienholder, if applicable, of the fact of such removal and the reasons thereof and of the place to which such vehicle has been removed. If any such vehicle is stored in a public garage or other storage facility, a copy of such notice shall be given to the attendant or owner of the facility. Further, a city employee authorizing the removal of the vehicle, shall adequately update written or electronic records of the immobilization and/or tow to provide for later identification of all fees relative to the release of the vehicle to the registered owner. 3. The cost of towing or removing such vehicle and costs of storing the vehicle shall be chargeable against the vehicle and shall be paid by the owner of the vehicle before the vehicle shall be released pursuant to 10.32.410.J. 4. The vehicle may be stored in a public or a private place; if a private place, the storage charges shall be the amount charged for such private storage; if stored on public property, the storage shall be as prescribed from time to time by City Commission resolution. The owner of a vehicle impounded and towed due to unpaid parking tickets must secure the release of the vehicle as required by 10.32.410.J. 5. The City assumes no responsibility for the condition of the vehicle upon towing to impound or a facility provided by a private towing entity. J. Release of Vehicle to Owner for Immobilization or Impoundment. 1. An immobilized or impounded vehicle may be released from immobilization or impoundment only to the owner or authorized agent of the owner of the vehicle. 2. The owner of an immobilized or impounded vehicle may secure its release: i. Prior to Impoundment: by paying all unpaid violations of this Chapter and all administrative costs, including the costs of immobilization as stated in subsection (iii) of this section with the City Finance Department; ii. Impoundment Due to Court Order: by paying the unpaid violations of this Chapter and all administrative costs, including the costs of immobilization and/or impoundment as stated in 10.32.410.H.4, to the City Finance Department, or as determined by the Bozeman Municipal Court; or 332 Page 13 of 16 iii. After Impoundment: by posting a bond with the City Finance Department in an amount equal to: 1. all outstanding violations of this Chapter and all administrative costs; 2. The immobilization fee of $150.00; and 3. A sum equal to the impound fee if the vehicle was impounded. 3. At the time the vehicle is released, the owner shall state in writing whether the payments made are in full satisfaction of all debts and judgments or whether the owner is making payment as a bond and will challenge the immobilization or impoundment with the Municipal Court. If the owner posts a bond and fails to challenge the immobilization or impoundment pursuant to 10.32.410.K, the bond shall be forfeit and considered as final payment for all debts and judgments. K. Hearing for Vehicle Immobilization or Towing/Impoundment. 1. Within ten (10) business days of notification of a pending immobilization under 10.32.410.H.2, or within ten (10) business days after an immobilization or impoundment the owner or operator of a vehicle which is the subject of the notice or the action may file a written petition to challenge the notice or action in Municipal Court. 2. Upon receipt of a petition, the Municipal Court has jurisdiction and shall set the matter for hearing on an expedited schedule. The Court shall give at least 48 hours written notice of the hearing date to the citing City employee or designated representative, the City Attorney’s Office, and the Petitioner. 3. Upon filing the petition, if the petition is filed based upon the notice, and an immobilization or impoundment action has not yet taken place, then any future immobilization or impoundment will be stayed pending the outcome of the hearing. An appropriate order shall issue from the Court. 4. The Court shall not require a response to the petition from the City, but shall take testimony and examine the facts of the case, except that the issues are limited to: i. For immobilization under 10.32.H: 1. Whether at the time of an immobilization the vehicle was either the subject of six (6) or more unpaid violations of this Chapter, an owner of the vehicle has six (6) or more unpaid violations of this Chapter as determined by 10.32.H.3 and those violations were issued for any vehicle the person currently owns or has owned, or the vehicle or owner is the subject of an order of immobilization in Bozeman Municipal Court; and 2. Whether a representative of the City had sent, prior to immobilization, to the registered owner of the vehicle a written notice complying with 10.32.H.2. 333 Page 14 of 16 ii. For impoundment: Whether the vehicle was properly the subject of an act of immobilization or towing as provided in under 10.32.I. 5. Based upon the issues in section 10.32.410.K.4 the Court shall determine whether the Petitioner is entitled to rescission of the notice or action of immobilization or impoundment. If the Petitioner is entitled to rescission, then the Court may order the City to pay or reimburse the fees for immobilization or impoundment. If the Petition is denied, then the Petitioner is subject to the action of immobilization or impoundment and must pay the costs of such action, if taken, together with any costs associated with the hearing should the Court find the Petition was without merit. 6. If the immobilization or impoundment was deemed justified by Court, the Court shall forfeit the bond. Any fines or fees remaining in excess of the amount of the bond posted shall be ordered by the Court to be paid by the owner of the vehicle to the Court. 7. The Court may consider a parking citation and any other written report made under oath by the issuing City employee in lieu of the issuing employee’s appearance at the hearing. 8. The Petitioner’s failure to appear at the hearing may result in a judgment against the petitioner pursuant to procedures established by law and an order may be issued by the Court requiring all debts, judgments, and administrative costs, including costs related to immobilization or impoundment and costs of the Court, and said order shall be complied with prior to release of the vehicle. L. Tampering with or Removal of Immobilization Device Prohibited – Penalty 1. A person commits the offense of tampering with or removal of an immobilization device if, before a release of the immobilization device is authorized by the City or the Municipal Court, the person: i. removes or attempts to remove an immobilization device from a vehicle; ii. relocates the immobilization device from its original installation position; iii. causes damage of any kind or amount to the immobilization device; or iv. removes an immobilized vehicle with or without the immobilization device attached from the vehicles location at the time the immobilization device was attached. 2. A person convicted of this offense is guilty of a misdemeanor and shall be fined not to exceed five hundred dollars ($500) or imprisoned in the county jail for a period not to exceed six (6) months or both such fine and imprisonment. 3. As an alternative to incarceration, the person may be ordered to participate in a supervised community corrections program or community service pursuant to §46-18-201, MCA. 334 Page 15 of 16 4. In addition, the person so convicted shall be ordered to pay restitution for the damages caused in an amount to be determined and set by the Court. The Court shall give full and due consideration to the person’s ability to pay the restitution, and may modify the order upon good cause shown by the person. Restitution must be paid in full prior to release from jurisdiction of the City. Section 3 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. Section 5 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 6 Codification Instruction. The provisions of Section 2 shall be codified as appropriate in Chapter 10.32 of the Bozeman Municipal Code. Section 7 Effective Date. This ordinance shall be in full force and effect on February 1, 2010. 335 Page 16 of 16 PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ____ day of October, 2009. ____________________________________ KAAREN JACOBSON Mayor ATTEST: __________________________________ STACY ULMEN, CMC City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ____ day of _______________, 2009. The effective date of this ordinance is February, 1 2010. _________________________________ KAAREN JACOBSON Mayor ATTEST: __________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 336 337 338 339