HomeMy WebLinkAboutOrdinance 10- 1781 Amending Section 10.32.410, regarding Impounding of VehiclesORDINANCE 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.E TO SECTION 1032.420.
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
(h.dinance N..o 1 1. ,1nieilding,tiection 10.32.410, Impounding l'elriclo
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.
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Ortimancv 10 /7',/ .SCL.11011 10 32 410, Impowiding f clucle■
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
10.32,400 Legislative Intent
Section 1
That Section 10.32.400 of the Bozeman Municipal Code be amended to read as follows,
with additions underlined and deletions stricken:
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 under 10.32.H.1 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
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the ways of the city open to the public. The notice must reference all the unpaid
violations of this Chapter against the vehicle or the owner and allow the person
ten (10) business days from the date of mailing of the notice to pay all unpaid
violations of this Chapter or contest the determination the vehicle is subject to
immobilization in the Municipal Court. If the vehicle owner does not respond
within ten (10) business days of the date of the mailing, the city may immobilize
or impound the vehicle.
3 Only the following violations of this Chapter may be considered in determining
the number of violations that subject a vehicle to immobilization:
i. All violation(s) occurring after July 1, 2007;
ii. Any violation(s) occurring prior to July 1, 2007 wherein a summons and
compliant has been lawfully served on the vehicle owner; and
iii. Any violation(s) of this Chapter for which a judgment has been entered by
the Bozeman Municipal Court as long as the judgment occurred no more
than ten (10) years prior to the date the notice of a pending immobilization
is sent pursuant to 10.32.H.2.
4. A $150 immobilization fee and costs of Costs of immobilization or impoundment,
including a $150.00 immobilization fee (when immobilization occurs), 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 Cit Hall, 121 N.
Rouse Ave., Bozeman, or by appearing in Bozeman Municipal Court, Law Justice
Center, 615 S. 16 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 10.32.410,1. 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 ancror impoundment by filing a request for a hearing with the Bozeman
Municipal Court within ten (10) business days of the immobilization iinpoundinent.
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
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obtained from the City of Bozeman or the Municipal Court, then the City
may impound the vehicle as provided for in 10.32.410.1.
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.
1. 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;
iv.v. In conjunction with an investigation in which the vehicle is seized
pursuant to provisions allowed under §46-5-311, MCA, or seized pursuant
to a court order; or
v.vi. Whenever any vehicle is found by the City parked or left standing in the
ways of the city open to the public streets or alleys of the city and:
1) The vehicle is subject to six (6) or more unpaid violations of this
Chapter as determined by 10.32.11.3 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.
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Prior to towing a vehicle under subsection (vi), the City must have
immobilized the vehicle andfollowing served service upon the last known
registered owner of the vehicle of a final written notice in a similar fotiii 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 10.32.410.1. 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.
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, the storage shall be as prescribed from time to time by
City Commission resolution. Storage fees for vehicles impounded pursuant to
this section 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, Sstorage fees shall not be
assessed against the owner of a vehicle impounded pursuant to 10.32.410.1.1 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.
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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 to the owner
or authorized agent of the owner of the vehicle is furnishedprovided 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 10.32.410.114, 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 writing within the
Municipal Court. the owner shall state in writing whether the payments made are
in full satisfaction of all debts and judgments or whether the owner is making
payment as a bond and will challenge the immobilization or impoundment with
the Municipal Court. If at the time of vehicle release the owner posts a bond
pursuant to 10.32.410.E.1.ii and 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.
Sale of Impounded Vehicles.
1. Vehicles that are not reclaimed within 30 days after notification by
certified mail or prescribed publication, in accordance with
10.32.410.1.2, 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.
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M.
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.
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.
Tampering with or Removal of Immobilization Device Prohibited Penalty
4. 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;
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°(1171(171(.
1 51..'L er)(Intg,Sectloll In 32,410. Impoi ridm, 'lr
ii. relocates the immobilization device from its original installation position;
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.
5. A person convicted of this offense is guilty of a misdemeanor and shall be fined
not to exceed five hundred dollars ($500) or imprisoned in the county jail for a
period not to exceed six (6) months or both such fine and imprisonment.
6. 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.
7. In addition, the person so convicted shall be ordered to pay restitution for the
damages caused in an amount to be determined and set by the Court. The Court
shall give full and due consideration to the person's ability to pay the restitution,
and may modify the order upon good cause shown by the person. Restitution
must be paid in full prior to release from jurisdiction of the City.
Section 3
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 ($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 detelinined and set by the Court, The Court
shall give full and due consideration to the person's ability to pay the restitution,
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l)rdrnuncc? o 1 S1 1 rrren furg
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.
Savings Provision.
Severability.
Codification Instruction..
Effective Date.
t1C 1(1 32 410, Impr,rtmling J c °hic'!ew
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
Section 5
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
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
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
This ordinance shall be in full force and effect on the 16 day of June, 2010.
Page 10 of11
Onimanc, \e) 1 sd S I() 32 416. 'mown( 1 clutle■
PROVISIONALLY PASSED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 26 day of April, 2010.
ATTEST:•' c
4.
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 17 day of
May, 2010.
ATTEST:
ST
Cit CIe
1883
co.
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APPROVED AS TO FORM:
E StJ LLIVAN
Cit‘ Attorne