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HomeMy WebLinkAboutOrdinance No. 1781, Amending Section 10.32.410 of the Bozeman Municipal Code Regarding Impound Storage Fees.pdf1 | Page Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Rich McLane, Lieutenant Marty Kent, Interim Chief of Police Chuck Winn, Assistant City Manager SUBJECT: In conjunction with Bozeman Parking Commission resolution 2010-01 recommending approval of Ordinance 1781, provisionally adopt Ordinance 1781, revision to Bozeman Municipal Code (BMC) Chapter 10.32, Section 410, to include addition of storage fees for vehicles impounded by the City of Bozeman, clarify locations where seizures may be made, provide clear guidelines on manner in which any proceeds from a sale of a vehicle are allocated, provide statute of limitations for all parking enforcement actions, to include decisions to immobilize or impound and to separate former misdemeanor offense of tampering with an immobilization device into a new section. MEETING DATE: April 26, 2010 AGENDA ITEM TYPE: Action RECOMMENDATION: Conduct a public hearing and suggest changes to Ordinance 1781, if applicable. Consider a motion provisionally adopting Ordinance 1781, including Commission amendments and conditions. BACKGROUND: In the fall of 2009, Ordinance 1770 was presented to the Bozeman City Commission and related Resolution 2009-01 was presented to the Bozeman Parking Commission. Ordinance 1770 provided some review and updates to Chapter 10.32, Section 410, involving Municipal Infractions for parking regulations in all areas of the city. New procedures and authority to immobilize and impound scofflaw parking violators was also approved, particularly holding those violators that had 6 or more parking citations (municipal infractions), 6 or more judgments, or 6 or more Summons & Complaint, or combination of these totaled 6 or more. On February 1, 2010, the legislation adopted in Ordinance 1770 went into effect. For the most part, these changes have been extremely effective in encouragement and enforcement related primarily to scofflaw violators. Numerous delinquent fines were paid by citizens avoiding extreme measures of having their vehicles immobilized or impounded. Over 22 violators have had their vehicles immobilized with over $15,000 in delinquent fines and related impound costs collected. More importantly, more fair and safe parking behavior has increased by all drivers, the ultimate goal of the ordinance. 87 2 | Page As with any new legislation, there are also areas identified that were either unforeseen or needed further clarifications. Ordinance 1781 is intended to clarify these areas and ensure due process is protected at all levels of the municipal infraction process for parking enforcement. Those areas addressed in the Ordinance and via this memorandum include: Establish of storage fees; vehicle release clarification; sale of vehicle authority defined; sale of vehicle fund allocation defined; statute of limitations for parking infractions/immobilization defined; and miscellaneous areas clarified. STORAGE FEES The Bozeman Police Department has used a secure impound location at Griffin and Rouse for seized vehicles for the last few decades. Costs related to fencing, paving, plowing are incurred each year. In the summer of 2010, the impound lot will be relocated to 2100 N. Rouse, with a resultant cost of nearly $10,000. Part of this cost includes increased security lighting, security cameras and better measures to deter and prevent criminal activity. Additionally, the Police Department conduct inventory searches of any seized vehicle and place any high value items into internal evidence security locations. Historically, the Bozeman Police Department has not assessed storage fees for vehicles impounded as either abandoned vehicles, traffic hazards or for investigatory purposes. This has lead to several owners allowing their vehicles to remain stored by the city, at no cost to them, for several months without incentive to properly pay for and retrieve their own vehicles. The manner in which other cities handle abandoned vehicles or impoundment covers a vast range. Some handle identification of vehicles needing to be towed and defer to either rotational wreckers or contracted services to remove and store the vehicles. Other have an impound lot and impound vehicles, applying a related storage fee. None of the cities or private towing services contacted provides free storage of vehicles. A reasonable storage fee provides a disincentive to leave a vehicle sitting in impound for months on end, accruing more fees. However, a fee that helps offset costs of a lot and maintenance is also an important reason to charge a storage fee. Government storage rates: MSU $7.50/day Helena $15/day Missoula $50/month Billings, MT tow to private business Great Falls, MT “ Boise, ID “ Rapid City, SD “ Private storage rates: Best Rate $15/day Elite $35/day M&W $15/day Mr. T’s $25/day Towzone $25/day Additionally, while a vehicle owner may not always claim their vehicle, it is also important that when the vehicle is sold that costs related to that vehicle’s removal and storage be properly identified, which is addressed later in this memorandum. 88 3 | Page In order to provide time for ample notification, we are recommending no storage fee assessed in the first five (5) business days after an impoundment. Often a vehicle is seized for evidentiary purposes. At some point in the investigation, often the vehicle can then be released back to the owner. Again, there also would not be any storage fee assessed until five (5) business days after the owner has been notified of the vehicle release authority. The fee of $75/month for each month, or part thereof, was assigned as a fair share of storage costs and a means to track that is not overly cumbersome for police officials. RELEASE OF VEHICLE CLARIFICATION In several releases over the past few months, questions about whether the actual owner or an authorized user of the vehicle could pay the fines/costs related to the vehicle immobilization. For instance, a college student may use their parents vehicle, incur (and not properly pay for) parking violations and find the vehicle immobilized. This same student should be able to pay the fines and costs and retrieve the vehicle. Additionally, the intent of Ordinance 1770 was to provide for a posting of the fines/costs as a bond, and only if the owner wished to challenge the immobilization would that bond not be applied to all unpaid citations. This has been modified in Ordinance 1781 to better address this intent. 89 4 | Page SALE OF VEHICLE AUTHORITY There already exist several areas addressed by Montana Code Annotated in handling the sale of a vehicle seized as either an abandoned vehicle or for investigatory purposes. Ordinance 1781 simply brings reference to these codes in Bozeman Municipal Code. SALE OF VEHICLE FUND ALLOCATION Over the past few years, numerous vehicles have been sold at auction. Rarely do the funds raised by the sale of these vehicles actually pay for costs directly related to costs of removal and storage of that particular vehicle. One vehicle may involve several hours of a salaried parking enforcement official’s time before it’s even removed. Administrative costs incur related to attempts to notify the owner of unpaid fines or an impounded vehicle occurs. Costs for publication of a sale, personnel costs to hold a sale and auctioneer costs are further incurred. All of these add up to tangible costs to citizens. While the allocation of some sale funds are addressed by Montana Code Annotated, Bozeman Municipal Code has been lacking in specifically addressing this allocation, particularly in regards to application of these funds to outstanding fines of the owner. This becomes more an issue in the rare circumstance that a vehicle is sold for more than the costs or fines outstanding for that vehicle. For every vehicle sold for an excess amount, 10 vehicles are not sold and the general fund suffers that loss. Montana Code Annotated provides for any excess amount sold to be deposited in the city’s general fund. Ordinance 1781 follows that same guidance accordingly. 90 5 | Page J. 2. 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. STATUTE OF LIMITATIONS While Montana Code Annotated addresses the statute of limitations for enforcement of criminal and civil actions, for normal operations and for citizen education, this was very cumbersome to easily retrieve and apply properly. Ordinance 1781 incorporates these into Bozeman Municipal Code. In regards to all municipal infraction enforcement, it is extremely important these be understood and followed, especially in regards to immobilization and impound of vehicles. As a citation, summons or judgment falls outside of the statute of limitations, that infraction will be closed out and no further direct (attempt to collect) or indirect (immobilization of a vehicle) be done. 91 6 | Page MISCELLANEOUS PROVISIONS Several minor areas were found in need of clarification and are addressed via Ordinance 1781. · A need was identified to clarify that immobilization of vehicles are not intended to be a punishment, but rather a “last-resort wakeup call” to bring scofflaw violators in compliance and pay their fines, with some minor change to wording related to this immobilization fee assessment. · A need was identified to clarify those vehicles of scofflaw violators (6 or more unpaid citations) would always be immobilized first, prior to impoundment. 92 7 | Page · A need was identified to clarify locations where a vehicle could be immobilized. · A need was identified to remove the Prohibition of Tampering with or Removal of an Immobilization Device from section 10.32.410 into a new section 10.32.420. Chapter 10.32.410 primarily addresses handling of municipal infractions and related immobilization, rather than criminal enforcement, such as new section 10.32.420. On April 14, 2010, the Bozeman Parking Commission adopted Resolution PC2010-02 adopting Ordinance 1781 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. On adoption of Ordinance 1781, clarification and proper guidance in regards to parking municipal infraction will occur. 93 8 | Page FISCAL EFFECTS: The establishment of storage fees, with a five (5) business day grace period, should serve as an incentive to retrieve vehicles from storage without additional cost to the vehicle owner. There will likely be some vehicles stored over this time period, resulting in additional cost recoupment to the city. Strict enforcement of statute of limitations for parking enforcement actions will result in less vehicles eligible for immobilization or impoundment, but collections will continue by requesting judgments be issued against these vehicle owners. ALTERNATIVES: As suggested by the City Commission. Attachments: Ordinance 1781 BPC Resolution PC2010-02 Report compiled on: April 14, 2010 94 ORDINANCE NO. 1781 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING SECTION 10.32.410 OF THE BOZEMAN MUNICIPAL CODE (BMC) TO INCLUDE PROVISIONS REGARDING THE IMPOUNDING OF VEHICLES FOR EVIDENCIARY PURPOSES, AND TO ESTABLISH A STORAGE FEE FOR IMPOUNDED VEHICLES, AND TO; CLARIFY THE USE OF A BOND POSTED ON A VEHICLE RELEASE, AND TO ESTABLISH PROCEDURES FOR THE SALE OF AN UNCLAIMED IMPOUNDED VEHICLE, AND TO ESTABLISH STATUTE OF LIMITATIONS FOR ENFORCEMENT, COLLECTION AND IMMOBILIZATION ACTIONS, AND TO RENUMBER SECTION 10.32.410.L TO SECTION 10.32.420. WHEREAS, Sect. 61-12-101(1), MCA, authorizes the City of Bozeman to regulate the standing and parking of vehicles; and WHEREAS, Title 7, Chapter 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 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 on-street parking when it remains in use, in coordination with off-street parking, subject to traffic regulations imposed by the state;” and 95 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 2 of 10 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 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 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, pursuant to Ordinance 1770, the City Commission created 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, the City Commission recognizes the need to establish procedures to address the impounding, storage and related disposal of vehicles seized pursuant to police investigations or court orders; and WHEREAS, the City Commission recognizes the need to establish storage fees of vehicles that fairly and adequately address the costs of storage and assess those costs to the owner of an impounded vehicle; and WHEREAS, the City Commission recognizes a bond posted by a vehicle owner or the owner’s authorized agent should be used to satisfy all costs related to the immobilization, impound, storage, and administrative costs and all unpaid violations owed on the vehicle unless the owner or authorized agent specifically appeals the immobilization and related impound in writing; and WHEREAS, the City Commission recognizes the need to establish procedures for the sale or disposal of unclaimed impounded vehicles; and WHEREAS, the City Commission recognizes the importance of clearly identifying the manner in which proceeds from the sale of a vehicle are applied in order to properly and fairly address all costs related to the immobilization, impound, storage, administrative and unpaid violations owed on the vehicle as well as to address circumstances in which either additional proceeds are received or circumstances in which all costs are not fully satisfied; and WHEREAS, the Parking Commission adopted Resolution PC-2010 adopting this ordinance as a parking regulation for each of its three districts and supports the adoption of this ordinance by the City Commission. 96 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 3 of 10 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 violations listed in this chapter, except for a violation of 10.32.420 (tampering with or removal of an immobilization device), are offenses involving civil liability and are considered municipal infractions under Chapter 1.24 of this code. It is also the intent of the City Commission that a violation of 10.32.420 is a misdemeanor criminal offense of absolute liability and 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 provisions of 10.32.410 of the Bozeman Municipal Code are hereby amended as follows: H. Immobilization of Vehicle. 1. Actions to immobilize a vehicle are for the purpose of collection and are not considered a penalty. 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. 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 97 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 4 of 10 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. A $150 immobilization fee and costs of impoundment, 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. 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. 98 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 5 of 10 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; v. In conjunction with an investigation in which the vehicle is seized pursuant to §46-5-311, MCA, or seized pursuant to a court order; or vi. Whenever any vehicle is found by the City parked or left standing in the ways of the city open to the public 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. Prior to towing a vehicle under subsection (vi), the City must have immobilized the vehicle following service upon the last known registered owner of the vehicle of a final written notice in a similar form to that required in 10.32.410.H. 99 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 6 of 10 2. Whenever a city employee authorizes the removal of a vehicle from the ways of the city open to the public as authorized in 10.32.410.I. 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 lien-holder, 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. Impound Fee. The cost of towing or removing such vehicle, administrative fees related to notification of the removal, and costs of storing the vehicle shall be chargeable against the vehicle as the impound fee and shall be paid by the owner of the vehicle before the vehicle shall be released pursuant to 10.32.410.J. 4. Storage Fee. 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 fee shall be seventy five ($75) dollars for each month, or any part thereof, up to a maximum of two hundred twenty five ($225) dollars . Storage fees for vehicles impounded shall not begin to accrue until five (5) business days following mailing of a certified letter notifying the registered owner of the impoundment or the owner has been directly advised. In addition, storage fees shall not be assessed against the owner of a vehicle impounded pursuant to 10.32.410.I.1 until the vehicle has been cleared for release and five (5) business days have passed after the owner has been advised of the release directly or by sending notice of the release by certified mail. 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. 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 after evidence of ownership or right to possession of the vehicle is provided to the City. 2. The owner of an immobilized or impounded vehicle may secure its release: 100 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 7 of 10 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 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. iv. After normal business hours release: by posting cash bond with the Bozeman Police Department that includes all costs listed in Section 2. iii. above for emergency exceptions, as necessary. 3. At the time the vehicle is released, the owner or the authorized agent of the owner may challenge the immobilization or impoundment in the Municipal Court. If at the time of vehicle release the owner posts a bond pursuant to 10.32.410.E.1.ii yet 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 listed in 10.32.410.J.2.iii. L. Sale of Impounded Vehicles. 1. Vehicles that are not reclaimed within 30 days after notification by certified mail or prescribed publication, in accordance with 10.32.410.I.2, or any vehicles seized and held as evidence where the vehicle no longer has any evidentiary value and for which an order for disposal for the vehicle has been signed by a judge in accordance §46-5-307, MCA and §46-5-308, MCA, may be sold at public auction in the manner provided in §25-13-701 et seq., MCA. 2. Proceeds from a sale involving vehicles seized pursuant to this chapter shall be applied first to pay for costs and charges as listed in 10.32.410.J.2.iii, with any additional balance deposited in the City of Bozeman general fund except when the City is required by law to deposit the balance or any part thereof with another party. In the event of a sale resulting in recovery of costs less than those 101 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 8 of 10 listed in 10.32.410.J.2.iii, any unpaid violations or costs may form the basis for additional enforcement under this chapter. M. Statute of Limitations. Enforcement and collection actions, to include issuing a Notice of Immobilization under 10.32.410.H.2, may not be issued if the following time periods have been exceeded: 1. Civil Citation Only: For citations issued after July 1, 2007 for which a summons has not been issued in accordance with 10.32.410.G.1, one (1) year from the date of issuance of the citation and prior to the date of notice of immobilization under 10.32.410.H.2; 2. Court Summons issued for Civil Citation: For citations issued after July 1, 2007, for which a summons has been issued in accordance with 10.32.410.G.1., but a judgment has not been entered, three (3) years after issuance of the summons and prior to the date of notice of immobilization under 10.32.410.H.2; 3. Court Summons issued for Criminal Citation: For any citation issued prior to July 1, 2007 that was issued as a criminal citation and where a summons and complaint had been filed with the Municipal Court, three (3) years from the date of filing with the Court and prior to the date of notice of immobilization under 10.32.410.H.2; 4. Judgment entered: For any violation, whether occurring prior to July 1, 2007 or later, if a judgment has been entered by a court, ten (10) years after judgment and prior to the date of notice of immobilization under 10.32.410.H.2. Section 3 That Section 10.32.420 of the Bozeman Municipal Code be created to read as follows: 10.32.420 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 102 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 9 of 10 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. 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 4 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 5 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 6 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 7 Codification Instruction. The provisions of Section 1, Section 2 and Section 3 shall be codified as appropriate in Chapter 10.32 of the Bozeman Municipal Code. 103 Ordinance 1781, Amending Section 10.32.410 Regarding Impounding Vehicles Page 10 of 10 Section 8 Effective Date. This ordinance shall be in full force and effect on _____ day of _____________, 2010. PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ____ day of ___________, 2010. _____________________________________________ JEFFREY K. KRAUSS 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 _______________, 2010. The effective date of this ordinance is _____ day of ________________, 2010. _____________________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _____________________________________________ GREG SULLIVAN City Attorney 104 BOZEMAN PARKING COMMISSION RESOLUTION PC2010-02 A RESOLUTION OF THE BOZEMAN PARKING COMMISSION OF THE CITY OF BOZEMAN, MONTANA, THE ADOPTION OF AND THE RECOMMENDATION FOR PASSAGE TO THE CITY COMMISSION OF THE CITY OF BOZEMAN CITY ORDINANCE 1781. WHEREAS, pursuant to city Resolution 3803, the Parking Commission of the City of Bozeman, Montana, has jurisdiction over three parking districts: the downtown B-3 Zoning District, the Montana State University Residential Parking District, and the Bozeman High School Residential Parking District; and WHEREAS, Sect. 7-14-4622(7), MCA, authorizes the Parking Commission, having been vested the authority by the City Commission, to “regulate on-street parking when it remains in use, in coordination with off-street parking, subject to traffic regulations imposed by the state;” and WHEREAS, Sect. 7-14-4628, MCA, authorizes the Parking Commission to issue regulations for on-street parking related to the determination of parking locations, variable parking durations, variable parking rate schedules, and enforcement policies and procedures; and WHEREAS, the Parking Commission resolved Resolution PC2009-01 which adopted City Ordinance 1770, authorizing the immobilization of vehicles with six or more outstanding parking citations; and WHEREAS, the Parking Commission recommended that the City Commission adopt City Ordinance 1770, authorizing the immobilization of vehicles with six or more outstanding parking citations; and NOW, THEREFORE, BE IT RESOLVED that the Parking Commission of the City of Bozeman, Montana, adopt City Ordinance 1781; and BE IT FURTHER RESOLVED that the Parking Commission of the City of Bozeman, Montana, recommend to the City Commission of the City of Bozeman the passage of City Ordinance 1781. PASSED and adopted by the Parking Commission of the City of Bozeman, Montana, on first reading at a session held on the 14th day of April 2010. 105 ____________________________________ Pam Bryan, Chair ATTEST: ______________________________ PAUL BURNS, City of Bozeman Parking Manager Enclosure: City of Bozeman Ordinance 1781. 106   Ordinance No. 1781 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING SECTION 10.32.410 OF THE BOZEMAN MUNICIPAL CODE (BMC) TO INCLUDE PROVISIONS REGARDING THE IMPOUNDING OF VEHICLES FOR EVIDENCIARY PURPOSES, AND TO ESTABLISH A STORAGE FEE FOR IMPOUNDED VEHICLES, AND TO; CLARIFY THE USE OF A BOND POSTED ON A VEHICLE RELEASE, AND TO ESTABLISH PROCEDURES FOR THE SALE OF AN UNCLAIMED IMPOUNDED VEHICLE, AND TO ESTABLISH STATUTE OF LIMITATIONS FOR ENFORCEMENT, COLLECTION AND IMMOBILIZATION ACTIONS, AND TO RENUMBER SECTION 10.32.410.L TO SECTION 10.32.420. WHEREAS, Sect. 61-12-101(1), MCA, authorizes the City of Bozeman to regulate the standing and parking of vehicles; and WHEREAS, Title 7, Chapter 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 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 on-street parking when it remains in use, in coordination with off-street parking, subject to traffic regulations imposed by the state;” 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 107 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 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, pursuant to Ordinance 1770, the City Commission created 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, the City Commission recognizes the need to establish procedures to address the impounding, storage and related disposal of vehicles seized pursuant to police investigations or court orders; and WHEREAS, the City Commission recognizes the need to establish storage fees of vehicles that fairly and adequately address the costs of storage and assess those costs to the owner of an impounded vehicle; and WHEREAS, the City Commission recognizes a bond posted by a vehicle owner or the owner’s authorized agent should be used to satisfy all costs related to the immobilization, impound, storage, and administrative costs and all unpaid violations owed on the vehicle unless the owner or authorized agent specifically appeals the immobilization and related impound in writing; and WHEREAS, the City Commission recognizes the need to establish procedures for the sale or disposal of unclaimed impounded vehicles; and WHEREAS, the City Commission recognizes the importance of clearly identifying the manner in which proceeds from the sale of a vehicle are applied in order to properly and fairly address all costs related to the immobilization, impound, storage, administrative and unpaid violations owed on the vehicle as well as to address circumstances in which either additional proceeds are received or circumstances in which all costs are not fully satisfied; and WHEREAS, the Parking Commission adopted Resolution PC2010-02 adopting this ordinance as a parking regulation for each of its three districts and supports the adoption of this ordinance by the City Commission. 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: 108 10.32.400 Legislative Intent It is the intent of the City Commission that the violations listed in this chapter, except for a violation of 10.32.420 (tampering with or removal of an immobilization device), are offenses involving civil liability and are considered municipal infractions under Chapter 1.24 of this code. It is also the intent of the City Commission that a violation of 10.32.420 is a misdemeanor criminal offense of absolute liability and 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 provisions of 10.32.410 of the Bozeman Municipal Code are hereby amended as follows: H. Immobilization of Vehicle. 1. Actions to immobilize a vehicle are for the purpose of collection and are not considered a penalty. 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 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 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. 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 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 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 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; 109 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 years prior to the date the notice of a pending immobilization is sent pursuant to 10.32.H.2. 4. A $150 immobilization fee and costs of impoundment, 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 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 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 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. If the vehicle has been immobilized, and has remained immobilized for a period of twenty-four 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 110 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; v. In conjunction with an investigation in which the vehicle is seized pursuant to §46-5-311, MCA, or seized pursuant to a court order; or vi. Whenever any vehicle is found by the City parked or left standing in the ways of the city open to the public and: 1) The vehicle is subject to six 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 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. Prior to towing a vehicle under subsection vi, the City must have immobilized the vehicle following service upon the last known registered owner of the vehicle of 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 10.32.410.I. 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 hours to such owner and lien-holder, 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. 111 3. Impound Fee. The cost of towing or removing such vehicle, administrative fees related to notification of the removal, and costs of storing the vehicle shall be chargeable against the vehicle as the impound fee and shall be paid by the owner of the vehicle before the vehicle shall be released pursuant to 10.32.410.J. 4. Storage Fee. 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 fee shall be seventy-five dollars for each month, or any part thereof, up to a maximum of two hundred twenty-five dollars. Storage fees for vehicles impounded shall not begin to accrue until five business days following mailing of a certified letter notifying the registered owner of the impoundment or the owner has been directly advised. In addition, storage fees shall not be assessed against the owner of a vehicle impounded pursuant to 10.32.410.I.1 until the vehicle has been cleared for release and five business days have passed after the owner has been advised of the release directly or by sending notice of the release by certified mail. 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. 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 after evidence of ownership or right to possession of the vehicle is provided to the City. 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 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. iv. After normal business hours release: by posting cash bond with the Bozeman Police Department that includes all costs listed in Section 2. iii. above for emergency exceptions, as necessary.   112 3. At the time the vehicle is released, the owner or the authorized agent of the owner may challenge the immobilization or impoundment in the Municipal Court. If at the time of vehicle release the owner posts a bond pursuant to 10.32.410.E.1.ii yet 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 listed in 10.32.410.J.2.iii. L. Sale of Impounded Vehicles. 1. Vehicles that are not reclaimed within 30 days after notification by certified mail or prescribed publication, in accordance with 10.32.410.I.2, or any vehicles seized and held as evidence where the vehicle no longer has any evidentiary value and for which an order for disposal for the vehicle has been signed by a judge in accordance §46-5-307, MCA and §46-5-308, MCA, may be sold at public auction in the manner provided in §25-13-701 et seq., MCA. 2. Proceeds from a sale involving vehicles seized pursuant to this chapter shall be applied first to pay for costs and charges as listed in 10.32.410.J.2.iii, with any additional balance deposited in the City of Bozeman general fund except when the City is required by law to deposit the balance or any part thereof with another party. In the event of a sale resulting in recovery of costs less than those listed in 10.32.410.J.2.iii, any unpaid violations or costs may form the basis for additional enforcement under this chapter. M. Statute of Limitations. Enforcement and collection actions, to include issuing a Notice of Immobilization under 10.32.410.H.2, may not be issued if the following time periods have been exceeded: 1. Civil Citation Only: For citations issued after July 1, 2007 for which a summons has not been issued in accordance with 10.32.410.G.1, one year from the date of issuance of the citation and prior to the date of notice of immobilization under 10.32.410.H.2; 2. Court Summons issued for Civil Citation: For citations issued after July 1, 2007, for which a summons has been issued in accordance with 10.32.410.G.1., but a judgment has not been entered, three years after issuance of the summons and prior to the date of notice of immobilization under 10.32.410.H.2; 3. Court Summons issued for Criminal Citation: For any citation issued prior to July 1, 2007 that was issued as a criminal citation and where a summons and complaint had been filed with the Municipal Court, three years from the date of filing with the Court and prior to the date of notice of immobilization under 10.32.410.H.2; 4. Judgment entered: For any violation, whether occurring prior to July 1, 2007 or later, if a judgment has been entered by a court, ten years after judgment and prior to the date of notice of immobilization under 10.32.410.H.2. 113 Section 3 That Section 10.32.420 of the Bozeman Municipal Code be created to read as follows: 10.32.420 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 or imprisoned in the county jail for a period not to exceed six 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. 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 4 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 5 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. 114 Section 6 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 7 Codification Instruction. The provisions of Section 1, Section 2 and Section 3 shall be codified as appropriate in Chapter 10.32 of the Bozeman Municipal Code. Section 8 Effective Date. This ordinance shall be in full force and effect on _____ day of _____________, 2010. PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ____ day of ___________, 2010. ____________________________________ JEFF KRAUSS, Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 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 115 of _______________, 2010. The effective date of this ordinance is _____ day of ________________, 2010. _________________________________ JEFF KRAUSS, Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 116