HomeMy WebLinkAboutOrdinance No. 1778, Clarification of Animal Control, Police Officer Authority regarding Animal Regulations.pdf
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COMMISSION MEMORANDUM
REPORT TO: Honorable Mayor and City Commission
FROM: Lieutenant Rich McLane, Bozeman Police Department
SUBJECT: Provisional adoption of Ordinance 1778, revision to Bozeman
Municipal Code (BMC) Chapter 6.04
MEETING DATE: Tuesday, January 19, 2010
RECOMMENDATION:
Conduct a public hearing and suggest changes to Ordinance 1778. Consider a
motion provisionally adopting Ordinance 1778, including Commission amendments and
conditions, and direct staff to return to the Commission for the second reading of
Ordinance 1778 on February 1, 2010.
BACKGROUND:
On September 25, 2009, the City Commission passed Ordinance 1764, providing for
substantial change to the manner in which enforcement is conducted regarding animal
regulations in the City of Bozeman. The most significant change was that involving the
allowance of a police officer or animal control officer to enforce violations of animal regulations
by either criminal prosecution or by use of a civil citation, or municipal infraction.
Since the implementation of Ordinance 1764, the majority of these changes have been
fully implemented with minor adjustments. Most citizens failing to obey these ordinances that
have received civil citations have paid the civil penalty without contesting the violation through
Municipal Court.
However, with several recent appeals, it was discovered that two issues in the existing
Bozeman Municipal Code needed modification to provide for due process.
Clarification of Animal Control/Police Officer Authority:
With the majority of criminal investigations, a police officer cannot make an arrest or
issue a citation unless the violation occurs in the officer’s presence or there exists sufficient
exigent circumstances necessitating immediate arrest. For instance, an officer may not observe a
victim assaulted by his/her partner, but upon observing physical harm to the victim and with
concern for the continued safety of the victim, will make an immediate arrest, even hours after
the assault occurred. In other circumstances, the officer may have probable cause that a crime,
such as theft has occurred outside of the officer’s presence. In these circumstances, the officer
normally submits all supporting documentation and evidence to the city attorney in the form of a
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request for prosecution. The city attorney then reviews the evidence and either declines
prosecution, requests and issues a summons to appear or requests and issues a warrant for the
arrest of the person.
However, in the event of animal regulations, a vast majority occur outside of the animal
control/police officer’s presence. For instance, a dog may have been allowed to run free, is
secured and taken to the animal shelter by a citizen, and the animal control officer is called the
next day to handle the situation. By its nature this offense is relatively minor and should result in
either a criminal citation or civil citation, rather than a request for prosecution. With a criminal
violation, other than the alleged violator failing to pay the fine or failing to appear, if directed,
the criminal fine is $100, reduced to $50. With a civil citation, the violator faces either a $50 or
$100 fine. Other violations such as barking dogs at night, evidence that a owner failed to license
their dog or cat or evidence that an owner failed to clean up after their dog are examples of
violations occurring outside of the officer’s presence. It is these type of infractions where after
an investigation and with finding of appropriate evidence that the office be able to issue a
criminal or civil citation, rather than a request for prosecution. For those reasons, minor changes
addressing the animal control officer/police officer authority have been made.
6.04.170 Enforcement - Animal Control Officer Authority
For the purpose of discharging the duties imposed by this chapter and enforcing its
provisions, the Animal Control Officer, or any police officer, in addition to any and all
other authority or power, whether the offense is committed in their presence or not and
existing circumstances require immediate action, is authorized:
A. After investigation and upon finding of sufficient probable cause may
issue a notice to appear pursuant to Section 46-6-
310, MCA, for any violator of this title;
B. After investigation and upon finding of probable cause may request criminal
prosecution for the violation through the City Attorney, or their designee;
C. After investigation may issue a civil citation in accordance with Bozeman
Municipal Code, Chapter 1.24;
Adjustment of timelines:
Part of the passing of Ordinance 1764 involved the establishment of guidelines for
contesting a civil citation upon a timely request. However, we have discovered two timelines
that are restrictive to both the City and for the defendant.
3. Court Proceedings. The following procedures shall be followed upon a timely
request for a civil hearing to contest a civil citation.
a. Upon receipt of a written request for a civil hearing, the
Department shall within 30 days notify the person of the
date, time and location of the civil hearing.
b…..f. NO CHANGE
g. If the defendant is found to have committed a violation after
a civil hearing or who requests a civil hearing and thereafter
fails to appear at the time and place of the hearing may be
held liable for actual hearing costs in accordance with
Montana Code Annotated 25-10-201 together with all actual
costs of service of the notice of the Municipal Infraction
either by mail or personal service. The defendant must pay
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the civil penalty, hearing costs and service costs within 30
days from when judgment is entered.
The first adjustment allows ample time to establish a hearing date. For either a criminal
or civil hearing, establishing a hearing date involves a few more steps than simply annotating a
date on a calendar. Initial coordination between finance, police and municipal court must occur,
along with a signed notice date by the Municipal Court Judge. We have discovered that 10 days
was insufficient time to ensure these steps were accomplished, but that 30 days was sufficient
and reasonable.
The second adjustment gives the defendant an additional 15 days to pay a judgment. A
judgment may involve the civil penalty and court costs. In order to provide the defendant with
ample time to pay this judgment without being penalized, a 15 day extension is warranted.
Both extensions were necessary to ensure all parties had ample time to comply with
Bozeman Municipal Code.
FISCAL EFFECTS:
No fiscal effects.
ALTERNATIVES:
As suggested by the City Commission.
Respectfully submitted,
______________________________
Lieutenant Rich McLane, Police Department
Attachments: (1) Ordinance 1778 with changes marked from previous Chapter 6.04
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ORDINANCE NO 1778
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA
PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY REVISING
SECTIONS 6.04.120, 6.04.170, AND 6.04.210 PROVIDING FOR REVISIONS TO AUTHORITY
GRANTED TO ANIMAL CONTROL OFFICERS AND MODIFY TIMELINES ESTABLISHED FOR
THE HANDLING OF MUNICIPAL INFRACTIONS AND PAYMENT OF JUDGMENTS.
WHEREAS, it is the intent of the City Commission to provide for and protect the health, safety and
welfare of the citizens of Bozeman, promote residential harmony and ensure the well-being of cats, dogs
and other animals through effective animal regulations and;
WHEREAS, it is the intent of the City Commission to allow for animal control officers and police
officers to provide necessary enforcement through the use of criminal citations and related prosecution for
more egregious, habitual or serious offenses and the use of civil citations and related civil penalties for
less serious offenses, but allow for the exercise of such discretion to be held at the time of the offense
and;
WHEREAS, pursuant to ordinance 1764, on September 26, 2009, the City Commission authorized
established the authority of animal control and police officers in regards to enforcement of animal
violations to include the ability to issue either criminal or civil citations and;
WHEREAS, it is the intent of the City Commission to grant authority to animal control officers and
police officers to issue criminal citations, civil citations, or request prosecution through the City
Attorney’s Office, regardless of whether the officer was present at the time the infraction was committed
and;
WHEREAS, it is the intent of the City Commission to provide timelines that provide adequate due
process for all parties involved after a defendant has requested a civil hearing to contest a civil citation
and;
WHEREAS, it is the intent of the City Commission to provide the defendant with adequate time to make
payment upon the issuance of a judgment by a Municipal Court Judge.
NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman
Montana:
Section 1
That 6.04.120 of the Bozeman Municipal Code shall be amended so that such section shall read as
follows:
6.04.120 Nuisance Animals Prohibited - Complaints
It is unlawful for any person to own, harbor, keep, or maintain any such nuisance animal, and it
shall be the duty of the Animal Control Officer and all law enforcement officers to file complaints for all
such violations occurring in their presence. Any person aggrieved by a nuisance animal may file a
complaint with the Animal Control Officer. Where the offense is not committed in the presence of the
Animal Control Officer, the Animal Control Officer shall investigate and issue an appropriate criminal or
civil citation, or request prosecution for the violation through the City Attorney, or their designee. (Ord.
1764, S 9, 2009; Ord. 1463 S 3, 1998; Ord. 1446 S 10,1997; Ord. 1085 S 11,1981)
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Section 2
That 6.04.170 of the Bozeman Municipal Code shall be amended so that such section shall read as
follows:
6.04.170 Enforcement - Animal Control Officer Authority
For the purpose of discharging the duties imposed by this chapter and enforcing its
provisions, the Animal Control Officer, or any police officer, in addition to any and all other
authority or power, whether the offense is committed in their presence or not and existing circumstances
require immediate action, is authorized:
A. After investigation and upon finding of sufficient probable cause may issue a notice to
appear pursuant to Section 46-6-310, MCA, for any violator of this title;
B. After investigation and upon finding of probable cause may request criminal prosecution
for the violation through the City Attorney, or their designee;
C. After investigation may issue a civil citation in accordance with Bozeman Municipal
Code, Chapter 1.24;
D. To inspect premises subject to a kennel license application, chicken license application, a
business license for animal boarding or any premises where the owner or occupant of the
premises has agreed to accept an animal to board or shelter when the animal is the subject
of an investigation, impound, upon issuance of a warrant or in accordance with judicially
recognized exceptions to the warrant requirement;
E. To demand from the occupants of any premises upon, or in which, an animal is kept or
harbored, the exhibition of such animal and the license for such animal;
F. To impound an animal which has attacked a person or other animal, is otherwise
reasonably believed to be dangerous, or pursuant to a cruelty investigation against the
animal in which protection of the animal from further abuse is warranted or in cases
where an animal is loose, injured or in need of care and may order that animal held until
such time as a hearing can be held before the Bozeman Municipal Court to determine
whether, and under what conditions, the animal should be released to the owner, in
accordance with Section 6.04.140; and
G. Upon order of the Bozeman Municipal Court, to destroy an animal deemed a
dangerous or vicious animal. (Ord. 1764, S 15, 2009; Ord. 1488 S 1, 1999; Ord. 1446 S
15, 1997; Ord. 1085 S 17, 1981)
Section 3
That 6.04.210 of the Bozeman Municipal Code shall be amended so that such section shall read as
follows:
6.04.210 Enforcement - Penalty for Violations
A. Criminal Violations.
1. Criminal Citation: Upon issuance of a Notice to Appear and Complaint as a
criminal violation, or upon issuance of a complaint by the Bozeman City
Attorney’s Office, when such complaint states the criminal penalty, it shall be
deemed a misdemeanor violation of this chapter. A Notice to Appear is deemed
served when handed to the defendant. A summons is deemed served three
business days after the date of issuance.
2. Penalty: Each person convicted of a misdemeanor for a violation of any of the
provisions of this chapter, for which another penalty is not provided, shall
upon conviction be punished according to the following schedule:
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a. First Offense: A fine of not less than $100 and not to exceed $200.
However, if the fine is paid within 10 business days of the date of the
Notice to Appear, the summons or warrant of arrest is served on the
defendant, and then $50 of the fine shall be suspended. After the
expiration of the 10 business days, any fine over the minimum shall be
suspended only at the discretion of the Municipal Court Judge or their
designee after the defendant has appeared in court.
b. Second Offense: A fine of not less than $200 and not to exceed $300.
However, if the fine is paid within 10 business days of the date of the
Notice to Appear, the summons or warrant of arrest is served on the
defendant, and then $100 of the fine shall be suspended. After the
expiration of the 10 business days, any fine over the minimum shall be
suspended only at the discretion of the Municipal Court Judge or their
designee after the defendant has appeared in court.
c. Third Offense: A fine of not less than $300 and not to exceed $500.
However, if the fine is paid within 10 business days of the date of the
Notice to Appear, the summons or warrant of arrest is served on the
defendant, and then $100 of the fine shall be suspended. After the
expiration of the 10 business days, any fine over the minimum shall be
suspended only at the discretion of the Municipal Court Judge or their
designee after the defendant has appeared in court.
3. Court costs: Upon conviction, the court costs, including costs of prosecution, costs of a jury trial,
or costs of a judge pro tempore or any part of the court costs may be assessed against the
defendant at the discretion of the court.
B. Municipal Infractions. If the violation has been deemed to be a municipal infraction,
pursuant to 6.04.020, procedures and penalties shall be followed in accordance with
Bozeman Municipal Code Chapter 1.24 “Municipal Infractions”, unless otherwise
specified differently in this section.
Failure to either pay the penalty provided within ten (10) business days or request a
civil hearing within ten (10) business days from the date the civil citation was served
shall be deemed to be an admittance that the violation occurred and shall authorize
the Municipal Court Judge, or their designee, to enter judgment against the person
served.
1. Civil Citation. A civil citation or notice of municipal infraction shall contain
the following information:
a. Name and address of the defendant, including any identifying
information;
b. Description and section number of the infraction attested to by the
Animal Control Officer issuing the civil citation;
c. Location and time of the infraction;
d. Amount of the civil penalty to be assessed or the alternative relief
sought, or both;
e. The manner, location and time in which the penalty may be paid if
admitting to the infraction;
f. The manner, location and time in which a civil hearing may be
requested if denying the infraction;
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g. A notice that a failure to either pay the penalty or request a civil hearing
within ten (10) business days shall be deemed to be an admittance that
the violation occurred and shall authorize the Municipal Court Judge, or
their designee, to enter judgment against the person served.
2. Service. A civil citation may be served on a person who commits a municipal
infraction by any one of the following methods:
a. Personal Service:
b. By certified mail addressed to the defendant at the defendant’s last
known mailing address, return receipt requested; or;
c. By publication, in the manner described in Rule 4D(5) of the Montana
Rules of Civil Procedure.
3. Court Proceedings. The following procedures shall be followed upon a timely
request for a civil hearing to contest a civil citation.
a. Upon receipt of a written request for a civil hearing, the Department
shall within 30 days notify the person of the date, time and location of
the civil hearing.
b. The civil hearing shall be held before a City of Bozeman Municipal
Court Judge, or their designee.
c. The Court shall ensure the defendant has received a copy of the
complaint and that the defendant understands the complaint. The
defendant may question all witnesses who appear for the municipality
and produce evidence or witnesses on the defendant’s behalf.
d. The defendant may be represented by counsel of the defendant’s own
choosing and at the defendant’s expense.
e. The civil penalty shall not be assessed if, after a hearing, the Municipal
Court Judge, or their designee, enters a finding of no liability. The
Municipal Court Judge, or their designee, at any civil hearing
under this chapter shall issue an order of judgment stating whether the
person charged with the Municipal Infraction is liable for the Municipal
Infraction; and if liable, the amount of any civil penalty, late penalty, and
actual civil action hearing costs assessed against the person. Upon full
satisfaction of penalties and costs, the department shall file a notice of
full satisfaction with the Municipal Court. A copy of the order of
judgment issued shall be maintained by the City.
f. In a civil hearing the standard of proof must be by clear and convincing
evidence.
g. If the defendant is found to have committed a violation after a civil
hearing or who requests a civil hearing and thereafter fails to appear at
the time and place of the hearing may be held liable for actual hearing
costs in accordance with Montana Code Annotated 25-10-201 together
with all actual costs of service of the notice of the Municipal Infraction
either by mail or personal service. The defendant must pay the civil
penalty, hearing costs and service costs within 30 days from when
judgment is entered.
h. 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 25-30-108 Montana Code
Annotated.
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4. Penalty. The imposition of civil penalty under this section is not a criminal
conviction and is punishable by a civil penalty.
a. In addition to actual hearing costs or costs of service assessed, a
defendant who admits liability or who is found liable after a civil action
hearing shall pay the following civil penalty:
1) $100 fine, which shall be reduced to $50 if paid within 10
business days from the date the civil citation is served.
2) $100 fine, which shall be reduced to $50 if paid within 10
business days from the date the municipal court judge has issued
an order of judgment on a finding that the defendant is liable.
b. The City Attorney, or their designee, is authorized to file suit or engage
the use of collection services to enforce collection of a civil penalty or
court costs imposed under this chapter. In addition to the amount of the
civil penalty collected, reasonable attorney’s fees and court costs
incurred in enforcing the collection shall be recoverable in that action.
(Ord. 1764, S 18, 2009; Ord. 1446, S 17, 1997;)
Section 4
Codification Instruction
The provisions of Section 2 and Section 3 shall be codified as appropriate in Chapter 6.04 of the
Bozeman Municipal Code.
Section 5
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 6
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 7
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
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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 8
Effective Date
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PROVISIONALLY PASSED by the City Commission of the City of Bozeman,
Montana on first reading at a regular session thereof held on the ___ January 2010
____________________________________
JEFF KRAUSS, Mayor
ATTEST:
_______________________________
STACY ULMEN
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 February 2010. The effective date of this ordinance is the ____ day of March 2010.
_________________________________
JEFF KRAUSS, Mayor
ATTEST:
_______________________________
STACY ULMEN
City Clerk
APPROVED AS TO FORM:
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_________________________________
GREG SULLIVAN
City Attorney
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