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HomeMy WebLinkAboutOrdinance 10- 1778 Authority Granted to Animal Control Officers 4 x 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; 1 of 7 Ordinance No. 1778, Animal Control 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 RESOLVED 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 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) 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 To issue a notice to appear pursuant to under the provisions of Section 46 -6 -310, MCA, for to 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.B. After investigation may To issue a civil citation in accordance with Bozeman Municipal Code, Chapter 1.24; D.C. 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.D. 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.E. 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 2of7 Ordinance: No. 1778, Animal Control 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.F. 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 6.04.2 10 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. Pe_ alty: 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: a. First Offense: A tine 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 1.0 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. Count 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 3 of 7 Ordinance Nn. 1778, Animal Control 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; 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 bearing to contest a civil citation. a. Upon receipt of a written request for a civil hearing, the Department shall within 3010 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. 4of7 Ordinance: No. 1778, Animal Control 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 tails 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 3015 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. 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. 5 of 7 Ordinance No. 1778, Animal Control 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 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 S Effective Date This ordinance shall be in full force and effect thirty (30) days after final adoption. 6of7 Ordinance No. 1778, Animal Control PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana on first reading t a regular session thereof held on the 19 day of January 2010. 160111� t? Y rY JEFF R SS May 0. B O Ak AT Acti k TI N CO. �t 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 I" day of February 2010. The effective date of this ordinance is the 3 day of March 2010. Ile J Y RA S aY F g 02 4; .:7 c �f 83 IN APPROVED AS TO FORM: G049tT City ttorney 7 of 7