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HomeMy WebLinkAboutPacket 2007-02-20_19-25_Provisionally adopt Ordinance 1696, Enabling Ordinance for Municipal Infractions Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Paul Luwe, City Attorney Chris Kukulski, City Manager SUBJECT: Ordinance 1696- Enabling Ordinance for Municipal Infractions MEETING DATE: Tuesday, February 20, 2007 BACKGROUND: Montana law allows a municipality to designate a criminal offense under state law to be a municipal infraction. In other words, decriminalize certain offenses. A municipal infraction is a civil offense punishable by a civil penalty rather than jail time. This ordinance is the enabling ordinance setting forth the procedures for when the City does designate an offense a municipal infraction. This ordinance does not declare any particular offenses as municipal infractions. If the Commission decides to enact this ordinance, staff we bring back two other ordnances asking the Commission to designate parking violations and encroachment permits in downtown business area as municipal infractions. Staff also will identify what other offenses should be decriminalized and bring those before you for consideration. Currently, only two other Cities have declared certain offenses municipal infractions. Helena has designated smoking violations and boulevard landscaping as municipal infractions. Helena is contemplating expanding the designation to zoning violations. Kalispell has designated parking violations as municipal infractions. Kalispell is contemplating expanding the designation to community decay and right away encroachment violations. Billings is exploring designating certain offenses as municipal infractions, but is still in the early stages of this process. RECOMMENDATION: The City Commission approve ordinance 1696. FISCAL EFFECTS: The passage of this ordinance does not create any fiscal impacts. However, when the particular ordinances come before you for consideration, the particular designation may have a fiscal effect, which will be identified at that time. ALTERNATIVES: As may be recommended by the Commission. Respectfully submitted, ___________________________ ____________________________ Paul J. Luwe, City Attorney Chris A. Kukulski, City Manager Attachments: as 19 ORDINANCE NO. 1696 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY ADDING A CHAPTER TO BE NUMBERED CHAPTER 1.24; PROVIDING FOR THE AUTHROIZATION AND CLASSIFICATION OF CERTAIN CITY OFFENSES AS MUNICIPAL INFRACTIONS, AND PRESCRIBING PROCEDURES AND PENALTIES. NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman, Montana: Section 1 That the Bozeman Municipal Code be amended by adding a new Chapter to be numbered Chapter 1.24, to read as follows: “MUNICIPAL INFRACTIONS 1.24.010 Definitions. A. AMunicipal Infraction@ means any violation of the Bozeman Municipal Code which has been specifically declared to be a Municipal Infraction under provisions of the Bozeman Municipal Code. B. AOfficer@ means any employee or official authorized to enforce provisions of the Bozeman Municipal Code or Bozeman Municipal Regulation. C. ARepeat Violation@ means a recurring violation of the same section of the Bozeman Municipal Code. Each day that a violation occurs or is permitted to exist constitutes a separate and distinct infraction. 1.24.020 Civil Citations. Service and Requirements. A. An officer may issue a civil citation to a person who commits a municipal infraction. The civil citation may be served on the defendant by any one of the following methods: 1. Personal Service; 2. By certified mail addressed to the defendant at the defendant=s last known mailing address, return receipt requested; or, 3. By publication, in the manner described in Rule 4D(5) of the Montana Rules of Civil Procedure. B. A copy of the citation must be retained by the issuing officer and one copy be sent to or filed with the clerk of the Bozeman Municipal Court. 21 C. The citation shall serve as notification that a municipal infraction has been committed and shall contain the following information: 1. The name and address of the defendant; 2. The name or description of the infraction attested to by the officer issuing the citation; 3. The location and time of the infraction; 4. The amount of the civil penalty to be assessed or the alternative relief sought, or both; 5. The manner, location and time in which the penalty may be paid; 6. The time and place of court appearance; and, 7. The penalty for failure to appear in court. 1.24.030. Court Proceedings. A. If the total amount of civil penalties do not exceed three thousand dollars ($3,000.00), the matter shall be tried before the Municipal Court Judge in the same manner as a small claim. If the total amount of civil penalties assessed exceeds three thousand dollars ($3,000.00), the matter must be tried before a District Court Judge. B. The City has the burden of proof that the municipal infraction occurred and that the defendant committed the infraction. The proof must be by clear and convincing evidence. C. The Court shall ensure that the defendant has received a copy of the charges and that the defendant understands the charges. The defendant may question all witnesses who appear for the municipality and produce evidence or witnesses on the defendant=s behalf. D. The defendant may be represented by counsel of the defendant=s own choosing and at the defendant=s own expense. E. The defendant may answer by admitting or denying the infraction. F. If a municipal infraction is proven, the Court shall enter judgment against the defendant. If the infraction is not proven, the Court shall dismiss the charges. G. If the person named in the citation is shown to have been served with the civil citation in the proper manner and, without good cause, fails to appear in response to the citation, judgment shall be entered against the person by the Court. 1.24.040 Penalties. A. A violation of a municipal infraction is a civil offense and punishable by a civil penalty. 22 B. For a first violation, a civil penalty of not more than three hundred dollars ($300.00) shall be imposed. C. For each repeat violation, a civil penalty not to exceed five hundred dollars ($500.00) shall be imposed. D. If there is a specific Bozeman Municipal Code provision that provides for a specific penalty, the specific Bozeman Municipal Code provision shall apply provided the penalty does not exceed the civil penalties provided by this section. E. Any statutory surcharges required by State Law or Bozeman Municipal Code must be imposed in addition to the civil penalty. F. All penalties and forfeitures collected by the Court for municipal infractions shall be remitted to the City in the same manner as fines and forfeitures collected for criminal offenses. G. Defendant against whom judgment is entered shall pay court costs and fees as in small claims court under Title 25, Chapter 35 of the Montana Code Annotated in addition to the penalties imposed by the Court. H. In addition to the imposition of civil penalties authorized by law against a defendant, the City may seek alternative relief from the Court in the same action. Alternative relief may consist of any of the following: 1. Direct that payment of the civil penalty be suspended or deferred under conditions imposed by the court; 2. Order the defendant to abate or cease the violation; 3. Authorize the City to abate or correct the violation; 4. Order the City=s costs for abatement or correction of the violation be entered as a judgment against the defendant or assessed against the property where the violation occurred, or both. I. The Municipal Court may assess or enter judgment for costs of abatement or correction in any amount not to exceed the jurisdictional amount for a money judgment in a civil action under MCA Section 3-11-103. If the City seeks abatement or correction costs in excess of this amount, the matter shall be referred to District Court for hearing and entry of an appropriate order. J. A defendant who willfully violates the terms of an order imposed by the Court is guilty of contempt. 1.24.050 Appeals. 23 A. The defendant or the City may file a motion for a new trial or may appeal the decision to District Court. B. A factual determination made by the trial court, supported by substantial evidence as shown on the record, is binding for purposes of appeal relating to the violation at issue, but is not admissible or binding as to any future violations for the same or similar ordinance provision by the same defendant. 1.24.060 Issuance of Civil Citations Not Grounds for Further Legal Action. Except for willful or wanton misconduct on the part of the City, the issuance of a civil citation for a municipal infraction or the ensuing court proceedings do not provide an action for false arrest, false imprisonment, or malicious prosecution. 1.24.070 Environmental Actions. An action brought by the City for an environmental violation does not preclude, and is in addition to, any other enforcement action that may be brought under state law. “ Secton 3 Repealer. All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in conflict herewith are hereby repealed. Section 4 Severability. If any provisions of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions of this ordinance which may be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are declared to be severable. Section 5 Effective Date. This ordinance shall be in full force and effect thirty (30) days after passage on second reading. PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on the first reading at a regular session thereof held on the 20th day February, 2007. PASSED, ADOPTED AND FINALLY APPROVED on second reading by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 5th day of 24 March, 2007. __________________________________ Jeff Krauss Mayor, City of Bozeman ATTEST: _____________________________________ Brit Fontenot City Clerk APPROVED AS TO FORM: ___________________________________ PAUL J. LUWE City Attorney 25