HomeMy Public PortalAboutOrd. 881 - Public SafetyPage 1 of 23
Ordinance 881
September 23, 2010
ORDINANCE NO 881
AN ORDINANCE OF THE CITY OF McCALL, VALLEY COUNTY, IDAHO AMENDING
MCCALL CITY CODE TITLE 5 - PUBLIC SAFETY, TO REPEAL CERTAIN SECTIONS
WITHIN CHAPTERS 2, 3, 4, 5 & 6 OF SAID TITLE, AND PROVIDE AN EFFECTIVE
DATE.
WHEREAS, City Staff recommended this proposed Code Amendment for approval by the
McCall City Council at the August 12, 2010 meeting; and
WHEREAS, update to the McCall City Code is necessary as several codes are inconsistent with
State Code.; and
WHEREAS, Idaho Code 50-302 requires City Code to remain consistent with Idaho State Code;
and
WHEREAS, the changes will remove the inconsistent codes and update the penalties for
misdemeanor crimes to mirror Idaho State Code; and
WHEREAS, the code amendments were approved by the McCall City Council at a regularly
scheduled and properly noticed public meeting on September 23, 2010.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY
OF MCCALL, IDAHO, AS FOLLOWS:
Section 1: McCall City Code Title 5 Chapter 2 is amended with the following changes:
Chapter 2
GENERAL PROVISIONS
5-2-010: DEFINITIONS:
INFRACTION: An offense so labeled in the provisions defining the offense in this or any other
Title of the McCall City Code.
MISDEMEANOR: Any other violation of this Title or of any other title of the McCall City
Code.
PERSON: Any natural person and also any other legal entity, such as but not limited to a
corporation, a partnership, a joint venture, an association, a Municipal corporation, a county, the
State and the like. Where an offense is committed by a person who is not a natural person, the
natural person(s) (if any) who directed the commission of the offense, and the natural person(s)
physically performing the acts constituting the offense, are jointly and severally subject to
prosecution and penalties.
5-2-020: CRIMINAL AND CIVIL PENALTIES:
(A) An infraction is punishable by a fine not to exceed one hundred fifty dollars ($150.00) per
offense; and also, with respect to infractions of the motor vehicle code or parking regulation
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provisions of this Title, as provided in the Idaho Code with respect to driver's license points,
suspension, and revocation.
(B) A misdemeanor is punishable by a fine not to exceed three hundred dollars ($300.00) per
offense, by imprisonment not to exceed six (6) months per offense, either or both; or by up to
such greater fine or up to such lengthier imprisonment as may be authorized by the Idaho
legislature with respect to violations of Municipal ordinances, either or both. The penalties for
misdemeanor violations found in the McCall City Code will remain consistent with the
misdemeanor penalties and fee structure found in Idaho Code.
(C) A civil penalty not to exceed one thousand dollars ($1,000.00) may be assessed by the Court
in the case of:
1. Controlled substance offenses, and per commercial unit;
2. Delivery of alcoholic beverages or tobacco to minors, and per commercial unit;
3. Habitual property crime offenders; and
4. Negligent driving under this Title involving alcohol; and misdemeanor offenses
prosecuted by the City Prosecutor under the Idaho Code respecting driving under the
influence.
In determining whether or not to impose such a penalty, the court shall consider whether
the facts and circumstances bring the case within a class of cases that imposes a burden
upon health and safety forces and facilities in the City, or threatens the domestic
tranquility; and in determining whether or not a case involves habitual conduct, shall
consider whether the conduct which forms the basis of the case is a continuing practice of
the defendant as shown by more than two (2) prior convictions for the same or similar
offense.
(D) It is the policy of the City that when fines and civil penalties are imposed for infractions and
misdemeanors committed with an economic motive, the amount of such fines and penalties
should be a distinct economic disincentive to the commission of another like offense.
(E) As provided in Title I of this Code, continuing offenses are deemed to be a separate offense
committed each day.
(F) A person to whom an infraction citation or parking ticket is issued under this Title shall
either make payment of such citation or ticket as indicated on it, or shall appear and contest the
citation or ticket as indicated on it; a person who does neither with respect to a citation or ticket
violates this subsection and thereby commits a misdemeanor to be known as "ignoring a
citation", the last essential fact of the commission of which misdemeanor occurs by failure to
appear in open court or before the court clerk; and a bench warrant may be issued for that
person's arrest on or after the return date on the citation or ticket.
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5-2-030: CERTAIN MATTERS NOT A DEFENSE:
It is no defense to a prosecution under this Title that the defendant, by reason of the same
conduct, also committed an offense under the Idaho Code which is or might be an infraction, a
misdemeanor, or a felony under the Idaho Code; nor shall this Title be deemed a defense to any
such infraction, misdemeanor or felony charge. This Title shall not be construed as purporting to
set penalties for Idaho Code offenses. All offenses under this Code are intended to be separate
and apart from any offenses under the Idaho Code, notwithstanding that a McCall City Code
charge and an Idaho Code charge may involve similar or the same conduct.
5-2-040: ARRESTS:
A natural person may be arrested by a City peace officer when the officer has probable cause to
believe that a misdemeanor has been committed by that person in the presence of the officer, or
when the officer has probable cause to believe that a felony has occurred and probable cause that
the person committed that felony, or when the officer has probable cause to believe that a
domestic "assault" or a domestic "battery", either or both, has occurred as defined in Section 5-3-
010 of this Title, "assault", subsection (C) and "family or household member".
5-2-050: INFRACTIONS:
The Mayor and Council may prescribe by resolution the fixed amount penalties for infractions
under this Title. City infraction citations may be upon either the uniform State form, or upon
standard forms prepared by the City for parking, water vehicle, and other ordinance violations. In
the event of nonpayment of an infraction ticket or citation, on whatever form, the citation or a
complaint may be filed in the Magistrate Division of the District Court. In such event the penalty
set by resolution shall be enhanced by the sum of seventy five dollars ($75.00) for costs of
prosecution.
Section 2: McCall City Code Title 5 Chapter 3 Subchapter A is repealed:
Chapter 3
OFFENSES HARMFUL OR THREATENING TO PEOPLE
SUBCHAPTER A. ASSAULTS AND BATTERIES
5-3-010: DEFINITIONS:
ASSAULT:
(A) An unlawful attempt, coupled with apparent ability, to commit a violent injury on the person
of another; or
(B) An intentional, unlawful threat by word or act to do violence to the person of another,
coupled with apparent ability to do so, and the doing of some act which creates a well-founded
fear in such other person that such violence is imminent; or
(C) A threat, express or implied, made with intent to instill in a family or household member a
fear that the offender or another will commit a battery on another family or household member.
BATTERY:
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(A) Any wilful and unlawful use of force or violence upon the person of another; or actual,
intentional and unlawful touching or striking of another person against the will of the other; or
the unlawful and intentional causing of bodily harm to another person; or
(B) Without limiting the generality of the foregoing, the physical injury, sexual abuse or forced
imprisonment of a family or household member.
FAMILY or HOUSEHOLD MEMBER:
(A) A spouse, or former spouse;
(B) Person related by blood or marriage; or
(C) Persons who reside or have resided together; and
(D) Persons who have a child together.
FIGHT:
A disagreement, argument, or quarrel involving physical struggle, battle or combat,
differentiated by this Section from "battery" by circumstances of mutual intent to engage in the
fight, including without limitation one person's inviting another to "step outside" or otherwise to
fight as a response to disagreement, dispute, or grievance, real or imagined, or as a means of
communicating an attitude or belief. The fact that surrounding circumstances constitute a "fight"
does not preclude a City or State charge of "assault" or "battery" if a participant employs a knife,
firearm, or other weapon in a fight, or if a participant continues to inflict conduct upon an
unresisting participant.
5-3-020: PROHIBITED ACTS:
Violence being contrary to the public peace and contrary to public policy, it is unlawful for any
person:
(A) To commit assault or battery with respect to any other person.
(B) To engage in a fight.
Section 3: McCall City Code Title 5 Chapter 3 Subchapter B is repealed:
SUBCHAPTER B. CONTROLLED SUBSTANCES
5-3-210: DEFINITIONS:
COMMERCIAL UNIT: The smallest amount of a given controlled substance that is commonly
used by one person for a single act of consumption, whether by smoking, ingestion, injection,
inhalation, or otherwise; in street parlance, a "hit". The sworn, in-court testimony of an
experienced police officer is competent to establish what is a commercial unit with respect to any
controlled substance.
CONTROLLED SUBSTANCE, DELIVER AND MANUFACTURE: Anything whatsoever that
is so defined in Idaho Code 37-2701, and 37-2702 through 37-2714, inclusive.
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5-3-220: PROHIBITED ACTS:
Except as authorized by Idaho Code title 37, chapter 27, the Uniform Controlled Substances Act,
it is unlawful:
(A) For any person to manufacture or deliver, or possess with intent to manufacture or deliver, a
controlled substance.
(B) For any person to possess, smoke, ingest, inject, or inhale a controlled substance or otherwise
to have the substance in that person's digestive tract or bloodstream, unless prescribed lawfully
for that person's use.
(C) For any person to possess drug paraphernalia as defined in Idaho Code 37-2701.
Section 4: McCall City Code Title 5 Chapter 3 Subchapter C is amended as follows:
SUBCHAPTER C. FURNISHING HARMFUL SUBSTANCES TO MINORS
5-3-310: UNLAWFUL PURCHASE OR DELIVERY:
(A) It is unlawful for a person, being over the age of eighteen (18) years to:
1. Purchase a cigarette, tobacco, or an alcoholic beverage, for delivery to a minor; or
2. Sell a cigarette, tobacco, or an alcoholic beverage to a minor.
(B) It is prima facie evidence of the intent to violate this Ordinance that a person delivers a
cigarette, tobacco, or an alcoholic beverage to a minor.
(C) Violation of this Section is a misdemeanor, and subject to a civil penalty as provided in
Section 5-2-020(C). A "commercial unit" for such purposes is a pack of cigarettes, a pouch or
can of tobacco, a six (6) pack of beer or wine cooler, a bottle or can of other alcoholic beverage,
or other like usually individually purchasable amount.
5-3-320: UNLAWFUL POSSESSION OR CONSUMPTION:
It is unlawful for a person under twenty one (21) years of age to be in the possession of or to
consume an alcoholic beverage or tobacco, except:
(A) Possession while making a delivery of beer or tobacco to a customer of the employer of the
person; or
(B) Possession for delivery pursuant to direction of a parent or guardian; or
(C) Possession or consumption of beer or wine in a private residence accompanied by the
person's parent or guardian and with that parent or guardian's consent; or
(D) Possession or consumption when prescribed by a licensed practitioner of the healing or
mental health counseling arts, and the person has a copy of such prescription in the person's
possession.
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Section 5: McCall City Code Title 5 Chapter 4 Subchapter B is amended as follows:
SUBCHAPTER B. THEFT
5-4-210: CONSOLIDATION OF THEFT OFFENSES:
(A) Conduct denominated theft in this Chapter constitutes a single offense superseding the
separate offenses previously known as embezzlement, extortion, false pretenses, cheats,
misrepresentations, larceny and receiving stolen goods.
(B) An accusation of theft may be supported by evidence that it was committed in any manner
that would be theft under this Chapter, notwithstanding the specification of a different manner in
the citation or complaint, subject only to the power of the Court to ensure fair trial by granting a
continuance or appropriate relief where the conduct of the defense would be prejudiced by lack
of fair notice or by surprise.
5-4-220: DEFINITIONS:
The following definitions are applicable to this Chapter:
APPROPRIATE: To "appropriate" the property of another to oneself or a third person means:
(A) To exercise control over it, or to aid a third person to exercise control over it, permanently or
for so extended a period or under such circumstances as to acquire the major portion of its
economic value or benefit; or
(B) To dispose of the property for the benefit of oneself or a third person.
DECEPTION: Knowingly to:
(A) Create or confirm another's impression which is false and which the offender does not
believe to be true; or
(B) Fail to correct a false impression which the offender previously has created or confirmed; or
(C) Prevent another from acquiring information pertinent to the disposition of the property
involved; or
(D) Sell or otherwise transfer or encumber property, failing to disclose a lien, adverse claim, or
other legal impediment to the enjoyment of the property whether such impediment is or is not
valid, or is or is not a matter of official record; or
(E) Promise performance which the offender does not intend to perform or knows will not be
performed. Failure to perform, standing alone, is not evidence that the offender did not intend to
perform.
DEPRIVE: To "deprive" another of property means:
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(A) To withhold it or cause it to be withheld from him permanently or for so extended a period
or under such circumstances that the major portion of its economic value or benefit is lost to him;
or
(B) To dispose of the property in such manner or under such circumstances as to render it
unlikely that an owner will recover such property.
OBTAIN:
(A) In relation to property, to bring about a transfer of interest or possession, whether to the
offender or to another; and
(B) In relation to labor or services, to secure its performance.
OBTAINS or EXERTS CONTROL: Over property includes, but is not limited to, the taking,
carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of
property.
OWNER: When property is taken, obtained or withheld by one person from another person, an
"owner" of the property means any person who has a right to possession of the property superior
to that of the taker, obtainer, or withholder.
PERSON: See Section 5-2-010 of this Title.
PROPERTY: Anything of value. Property includes real estate, money, goods, commercial paper,
crops, timber, fixtures, letters of credit, warehouse receipts, bills of lading, documents of title,
chattel paper, and investment securities, all as defined in the Uniform Commercial Code, title 28
of the Idaho Code; and without limiting the generality of the foregoing, admission or
transportation tickets, labor, services, anything growing on or affixed to land or to any building,
electricity, cable television, water, sewer; birds, animals and fish which are ordinarily kept in a
state of confinement or within a fenced enclosure; food, drink; intellectual property, samples,
cultures, micro-organisms, specimens, records, recordings, documents, blueprints, drawings,
maps, and whole or partial copies, descriptions, photographs, prototypes or models thereof which
constitute, represent, evidence, reflect or record a secret scientific, technical, merchandising,
production or management information, design, process, procedure, formula, invention, or
improvement; and computer software not intended by its author and publisher for distribution
prior to or without purchase.
SERVICE: Includes, but is not limited to, professional service, labor, transportation service, the
supplying of hotel accommodations, restaurant services, entertainment, a communication facility
or system, the supplying of equipment for use, and the supplying of commodities of a public
utility nature such as electricity, water and sewer. A ticket or equivalent instrument which
evidences a right to receive a service is not in itself service, but constitutes property within the
meaning of "property" definition above.
STOLEN: The adjective used to describe property which is the subject of a theft.
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STOLEN PROPERTY: Property over which control has been obtained by theft.
VALUE: The value of property shall be ascertained as follows:
(A) Except as otherwise provided below in this subsection, value means the market value of the
property at the time and place of the theft, or if such cannot be satisfactorily ascertained, the cost
of replacement of the property within a reasonable time after the theft.
(B) Whether or not they have been issued or delivered, certain written instruments, not including
those investment securities traded on national markets or exchanges, shall be valued as follows:
1. Commercial paper shall be deemed worth its face amount due from the maker or
drawer.
2. The value of a ticket or equivalent instrument which evidences the right to
transportation or admission shall be deemed the price stated on it; if no price is stated on
it, the value is the price which would be charged by the issuer for a new ticket of the
same kind and character on the date of the theft, or if such cannot be satisfactorily
ascertained, the cost of replacement of the property within a reasonable time after the
theft;
3. The value of any other document which creates, evidences, releases, discharges, or
otherwise affects any valuable legal right, privilege or obligation shall be deemed the
greatest amount of economic loss which the owner of the instrument might reasonably
suffer by virtue of the loss of the instrument.
(C) When the value of property cannot be satisfactorily ascertained pursuant to the standards in
subsections (A) and (B) of this definition, its value shall be deemed to be less than one hundred
fifty dollars ($150.00).
(D) For the purpose of showing the value of any item of property, the interest of any owner or
owners entitled to part or all of the property consisting of or represented by the item, may be
shown, even if another owner may be named in the complaint or citation.
5-4-230: THEFT:
It is unlawful to commit theft.
(A) A person steals property and commits theft when, with intent to deprive another of property
or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds
such property from an owner thereof.
(B) A person commits theft by a wrongful taking, obtaining or withholding of another's property
with the intent described in subsection (A) of this Section, committed in any of the following
ways:
1. By deception obtaining or exerting control over property of the owner.
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2. By conduct heretofore defined or known as larceny; common law larceny by trick;
embezzlement; extortion; obtaining property, money or labor under false pretenses; or
receiving stolen goods.
3. By acquiring lost property. A person acquires lost property by exercising control over
property of another which he knows to have been lost or mislaid, or to have been
delivered under a mistake as to the identity of the recipient or the nature or amount of the
property, without taking reasonable measures to return such property to the owner or to
the police; or a person commits theft of lost or mislaid property when he:
(a) Knows or learns the identity of the owner or knows or learns a reasonable
method of identifying the owner; and
(b) Fails to take reasonable measures to restore the property to the owner; and
(c) Intends to deprive the owner permanently of the use or benefit of the property.
4. By false promise. A person obtains property by false promise when pursuant to a
scheme to defraud, he obtains property of another by means of a representation, express
or implied, that he or a third person will in the future engage in particular conduct, when
he does not intend to engage in such conduct or, as the case may be, he does not believe
that the third person intends to engage in such conduct; such belief may not be
established as a matter of evidence solely because the third person did not engage in such
conduct.
5. By extortion. A person obtains property by extortion when he compels or induces
another person to deliver such property to himself or to a third person by means of
instilling in him a fear that, if the property is not so delivered, that person or another will:
(a) Cause physical injury to some person in the future; or
(b) Cause damage to property; or
(c) Engage in other conduct constituting a crime; or
(d) Accuse some person of a crime or cause criminal charges to be brought
against him; or
(e) Expose a secret or publicize an asserted fact, whether true or false, tending to
subject some person to hatred, contempt or ridicule, or to loss of employment or
advantage; or
(f) Cause a strike or boycott or other collective labor group action injurious to
some person's business; except that such a threat shall not be deemed extortion
when the property is demanded or received for the benefit of the group whose
interest the actor purports to act; or
(g) Testify or provide information or withhold testimony or information with
respect to another's legal claim or defense; or
(h) Use or abuse his position as a public servant by performing some act within or
related to his official duties, or by failing or refusing to perform an official duty,
in such manner as to affect some person adversely;
(i) Perform any other act which would not in itself materially benefit the actor but
which is calculated to harm another person materially with respect to his health,
safety, business, calling, career, financial condition, reputation or business
relationships.
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(C) A person commits theft when he knowingly takes or exercises unauthorized control over, or
makes an unauthorized transfer of an interest in, the property of another person, with the intent of
depriving the owner of the property of its possession.
(D) A person commits theft when he knowingly receives, retains, conceals, obtains control over,
possesses or disposes of stolen property, knowing the property to have been stolen by another or
under such circumstances as would reasonably induce him to believe that the property was
stolen, and
1. Intends to deprive the owner permanently of the use or benefit of the property; or
2. Knowingly uses, conceals or abandons the property in such manner as to deprive the
owner permanently of such use or benefit; or
3. Uses, conceals, or abandons the property knowing such use, concealment, or
abandonment probably will deprive the owner permanently of such use or benefit.
(E) Theft of Labor or Services or Use of Property:
1. A person commits theft when he obtains the temporary use of property, labor or
services of another which are available only for hire, by means of threat or deception or
knowing that such use is without the consent of the person providing the property, labor
or services.
2. A person commits theft when after renting or leasing a motor vehicle under an
agreement in writing which provides for the return of the vehicle to a particular place at a
particular time, he wilfully or intentionally fails to return the vehicle to that place within
forty eight (48) hours after the time specified.
3. A person commits theft if, having control over the disposition of services of others, to
which he is not entitled, he knowingly diverts such services to his own benefit, or to the
benefit of another not entitled thereto.
4. A person commits theft if he enters, without payment of the proper admission fee, any
theater, ballroom, concert, lecture or other place where admission fees are charged, unless
by permission of the person in charge, or unless a police officer engaged in police duties.
5. A person who commits theft as to more than one item of property during one theft
event, commits as many separate acts of theft as there are items of property stolen, each
of which may be prosecuted as a separate offense.
5-4-235: SHOPLIFTING AND RETAIL THEFT:
"Goods" as used in this Section has the same meaning as in the Uniform Commercial Code. A
person commits theft when that person:
(A) Without authority, wilfully conceals goods of any store, while still upon the premises of such
store; goods found concealed upon the person shall be prima facie evidence of a wilful
concealment; or
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(B) Other than after completing a purchase of the goods, alters, transfers or removes any label,
price tag, marking, indicia of value or any other marking or device which aids in the
determination of the value of goods, or which magnetically or otherwise aids in detecting the
removal of goods from the store.
5-4-240: PRIMA FACIE EVIDENCE OF THEFT BY LESSEE OF PERSONAL
PROPERTY:
It shall be prima facie evidence that a person knowingly obtains or exerts unauthorized control
over property of the owner when he as lessee or renter of the personal property of another, leased
or rented by written instrument:
(A) Fails or refuses to return such property to its owner after the lease or rental agreement has
expired within the earlier of ten (10) days or forty eight (48) hours after written demand for its
return is personally served or given by certified mail, return receipt requested, delivered to the
last known address provided in such lease or rental agreement; or
(B) Obtained the lease or rental of such property in whole or part by presenting identification to
the owner, lessor, or renter which is false, fictitious, or knowingly not current as to name,
address, place of employment or other identification.
5-4-250: PROOF OF FRAUDULENT INTENT IN PROCURING FOOD, LODGING OR
OTHER ACCOMMODATIONS:
It is prima facie proof that lodging, food or other accommodation was obtained by theft, that
there was a fictitious show of baggage, or that baggage was surreptitiously removed from the
premises, or was attempted to be removed from the premises, or that the consumer of food
absconded from the premises, without first making payment.
5-4-260 5-4-210: DEFENSES:
(A) It is no defense to a charge of theft that the offender has an interest in the property, when the
owner also has an interest to which the offender is not entitled.
(B) Where the property involved is that of the offender's spouse, no prosecution for theft may be
maintained unless the parties were living in separate abodes at the time of the alleged theft.
(C) In any prosecution for theft committed by trespatory taking or the offense previously known
as embezzlement, it is an affirmative defense that the property was appropriated openly and
avowedly, and under a claim of right made in good faith. It is not a defense to a theft committed
by such conduct that the accused intended to restore such property taken, but that fact may be
considered by the court to mitigate punishment if the property is voluntarily and actually restored
(or tendered) prior to the filing of any complaint or issuance of any citation; but this provision
does not excuse the unlawful retention of the property of another to offset or pay demands held
against the accused.
(D) It is an affirmative defense to a prosecution for theft by extortion, committed by instilling in
the victim a fear that he or another person would be charged with crime, that the defendant
reasonably believed the threatened charge to be true, and that the defendant's sole purpose was to
induce the victim to take reasonable action to make good the wrong which was the subject of
such threatened charge.
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Section 6: Title 5 Chapter 5 Subchapter D is repealed:
Chapter 5
OFFENSES AGAINST THE PUBLIC PEACE
SUBCHAPTER D. TRESPASS AND MALICIOUS MISCHIEF
5-5-410: DEFINITIONS:
In this Subchapter:
LIMITED COMMON AREA: A porch, deck, stairwell, staircase, garage, or other area of real
property in which an owner has a right of possession superior to the right of the general public,
but which right of possession is not exclusively in one owner; such as, for one example, the stairs
and hallways of a business or residential structure different interior portions of which are owned
or possessed by different owners.
OWNER: As to the offender, any person with a superior right of possession of the property,
whether because an owner, a tenant, or a tenant by sufferance or otherwise.
PERSONALTY: Motor vehicles, motor bikes, bicycles, and other tangible personal property of
an owner.
PROPERTY: Real property, including also mobile homes, campers, and like movable personal
property intended for use temporarily or permanently as human habitation.
5-5-420: PROHIBITION:
It is unlawful to enter or to go into the possession of property or personality of an owner without
the consent of that owner, or to exercise any form of dominion or control over any of such
property or personality, or fixtures or improvements located on it. The generality of the
foregoing not being limited, it is unlawful without the consent of that owner (or if the owner is a
minor, the minor's parent or guardian):
(A) To cut or take down a fence of an owner, or to let down bars of a fence or open a gate and
not immediately close it.
(B) To deface by bending, breaking, or scarring, or by paint, crayon, or otherwise, the property
or personality of an owner.
(C) Having entered upon property, to fail or refuse to leave the same upon request of an owner,
or to re-enter after such a leaving.
(D) To enter the residence of an owner, the business of an owner, or limited common area
appurtenant to that residence or business.
Nothing in this Section shall have any effect upon the powers of a peace officer under
circumstances that he may otherwise lawfully enter property without the consent of an owner.
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5-5-430: PENALTIES:
A violation of this Subchapter is a misdemeanor.
Section 7: Title 5 Chapter 5 Subchapter E is amended as follows:
SUBCHAPTER E. FALSE ALARMS AND FALSE POLICE REPORTS
5-5-510: FALSE REPORTS:
(A) It is unlawful and a misdemeanor to make a report to a peace officer (alleging breach of law)
or emergency medical personnel (alleging medical emergency) or Fire Department personnel
(alleging fire) or to the person or office of the person that dispatches the same, which report is
known by the maker to be false when made; or to cause a fire or burglar alarm to sound or dial as
for a fire or burglary, the offender knowing at the time that there was no fire or no burglary. It is
an infraction unintentionally to set off a burglar alarm, without then promptly taking steps to
notify the Department that an accidental triggering of the alarm has occurred, or to permit a
burglar or fire alarm to go off by reason of malfunction more than three (3) times without taking
proper steps to correct the condition causing the malfunction.
(B) It is a misdemeanor for a person to give a police officer false information concerning that
person's identification; that person's drivers licensure; or, in connection with the investigation of
an age-related offense, the person's age or date of birth; or concerning the vehicle in the
possession of that person.
(C) Unless, both, there in fact is an emergency and the below proscribed conduct is in fact
procured by the perpetrator(s) of the emergency, which shall be an affirmative defense, it is a
misdemeanor for a person to dial the emergency number 911 on a telephone, and then
1. To hang up when the call is answered without speaking to the emergency operator or
dispatcher answering the call; or
2. To furnish false information to the emergency operator or dispatcher answering the
call; or
3. Otherwise to engage in conduct indicating that the call was made as a joke, or for
amusement, or for purposes of harassment.
5-5-520: OBSTRUCTING AND DELAYING AN OFFICER:
It is a misdemeanor for a person to resist, delay, or obstruct any City officer, police officer,
fireman, or other emergency service personnel in the performance of the duty of the office; and a
misdemeanor for a person to interfere with an officer's good faith efforts to safeguard persons or
property. Should such resistance, delay or obstruction take the form of pushing, shoving,
struggling, fighting or other physical violence, such misdemeanor shall be punishable by the
maximum fine permitted to cities under applicable law and by not less than three (3) days in jail
actually served. This offense is an offense against the City and the office, and shall be in addition
to, and not in lieu of, any charge of battery as to the person holding such office.
Section 8: Title 5 Chapter 5 Subchapter F is amended as follows:
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SUBCHAPTER F. UNLAWFUL ASSEMBLY
5-5-610: DEFINITIONS:
RIOT: As a noun an unlawful assembly which has resulted in damage to property or injury to a
person, and as a verb the performing of acts constituting the riot.
UNLAWFUL ASSEMBLY: The gathering together of two (2) or more persons with the intent,
which may be inferred from the effect:
(A) To do another unlawful act; or
(B) To do a lawful act in a violent, boisterous or tumultuous manner.
5-5-620 5-5-610: PROHIBITION:
Unlawful assembly is an infraction if injury to person or property neither occurs nor is
threatened; otherwise it is a misdemeanor; and in either case is a violation of this Section. Riot is
a misdemeanor.
5-5-630 5-5-620: CUSTODY:
(A) In the event unlawful assembly or riot occurs and causes or threatens to cause physical injury
to persons, or damage or destruction to property, officers of the Department are authorized to
take offenders into custody for a misdemeanor committed in their presence.
(B) The Chief has the authority in time of riot or unlawful assembly involving more than two (2)
or three (3) persons, to contract for emergency detention space.
Section 9: Title 5 Chapter 5 Subchapter G is amended as follows:
SUBCHAPTER G. WEAPONS
5-5-710: FIREARMS:
(A) It is unlawful to be in the possession of a firearm while committing any other offense defined
in this Title, and the possession of such firearm during the commission of such other offense
shall be a separate misdemeanor.
(B) It is unlawful for any person other than a peace officer to be in a public place or a place of
business within the City in possession of a firearm which is loaded, that is, has a bullet or sabot
or equivalent device in its chamber, cylinder, or magazine, unless:
1. Such person has previously received written permission from the Chief of Police
issued because the Chief of Police is persuaded that the person's life is in danger and that
carrying a loaded weapon will not exacerbate the problem.
2. Such person is engaged in the lawful use of the weapon, at a lawful place for target
practice, or in the defense of life or in the assistance of a peace officer at the request of
the peace officer.
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3. Such person is the owner or manager of the place of business in question and has the
weapon in a properly secured location where it cannot be touched by business invitees or
unauthorized employees.
(C) It is unlawful for any person not a peace officer to carry a concealed weapon, unless such
person possesses a valid permit issued to him by the sheriff of an Idaho county, for the carrying
of concealed weapons; or having such a permit, to refuse to display it to a peace officer.
(D) It is unlawful for any person other than a peace officer, and other than the owner or manager
of the business, to be in possession of a firearm on premises where the sale of alcoholic
beverages by the drink is licensed, during hours when such beverages are being sold. It is not a
violation of this subsection for a person to turn such firearm over to an employee of the business
for safekeeping while on the premises.
(E) It is unlawful for any person to return a firearm to its owner if such owner is under the
influence of intoxicants or controlled substances (as defined in this Title by reference to the
Idaho Code) at the time.
(F) It is unlawful for any person to discharge a firearm within the City limits; except:
1. A peace officer doing so within the scope of his duties or training, or
2. When permitted by the State law governing use of deadly force in the defense of life,
limb or property.
5-5-720 5-5-710: AIR RIFLES, BB GUNS AND PELLET GUNS:
It is unlawful for any person to discharge any weapon within the City from which a shot, BB,
pellet, projectile or other object may be discharged by force of compressed air, gas or mechanical
means, or to leave any such weapon in any location accessible to a minor while a projectile is in
the location from which a projectile is discharged from such a weapon.
5-5-730 5-5-720: COMPOUND BOWS, RECURVE HUNTING BOWS:
It is unlawful for any person to discharge an arrow from a compound or recurve bow within the
City.
5-5-740 5-5-730: EXCEPTIONS:
A person may engage in conduct otherwise prohibited by this Chapter under the following
circumstances:
(A) Hunter Safety Education: When at the time and place being instructed by an instructor
teaching the hunter safety education course of the Department of Fish and Game for purposes of
hunting licensure; or
(B) Target Practice: When, having successfully passed a hunter safety education course of the
Department of Fish and Game for purposes of hunting licensure, using an air rifle, BB gun or a
bow, at a target with a backstop that in fact prevents projectiles from escaping from the target
and backstop; provided, that a police officer or the Fire Chief may order that that conduct cease
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when concluding that the conduct presents a public safety hazard, and it shall be a violation of
this Chapter to continue that conduct after such order; or
(C) Approved Facility For Target Practice: When at a facility approved by the City Council on
the favorable recommendation of the Police Chief for use as a target range with the type of
weapon being used, and which facility and weapon are being used in accord with the conditions,
if any, placed on such approval, or
(D) Paintball Recreation: When at a facility approved by the City Council on the favorable
recommendation of the Police Chief for use as a paintball range or course with the type of
paintball weapon being used, and which facility and weapon are being used in accord with the
conditions, if any, placed on such approval by Council, the Police Chief, or the operators of the
range or course, such as, but not limited to, gear for the protection of the eyes.
Section 10: Title 5 Chapter 6 Subchapter A is repealed:
Chapter 6
VEHICLE AND BOAT REGULATIONS
SUBCHAPTER A. NEGLIGENT DRIVING
5-6-010: NEGLIGENT DRIVING:
It is unlawful to operate a motor vehicle in negligent manner within the City.
5-6-020: PRESUMPTIONS:
Without limiting the generality of Section 5-6-010 of this Subchapter, a person operates a motor
vehicle in a negligent manner if the vehicle:
(A) Is involved in a collision with a telephone pole, tree, building or any other fixed object.
(B) Unlawfully crosses the centerline of the road.
(C) Is being operated without its headlights on, during hours of darkness or in fog.
(D) Is in the physical control of a person with a blood alcohol content of eight one-hundredths
percent (0.08%), control and blood alcohol content having the meaning and being established as
provided in title 18, chapter 80, of the Idaho Code.
(E) Is being driven at a speed in excess of the posted speed.
5-6-030: PENALTIES:
A violation of Section 5-6-010 is:
(A) An infraction if there is no resulting injury to a person or to a second person's property and if
the defendant had not been consuming or using alcohol or a controlled substance at a time
proximate to the event.
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(B) In all cases not described in subsection (A), a misdemeanor.
Section 11: Title 5 Chapter 7 is repealed:
Chapter 7
DOG CONTROL
5-7-010: DEFINITIONS:
As used in this Chapter the following terms shall be interpreted as follows:
BITTEN: Means had seized, pierced, or cut with the teeth or with the jaws, other than when done
by a puppy less than four (4) months old, in play; and "seized" in this regard means with
sufficient force to scratch or bruise, or to pierce, cut or tear clothing.
DOG: Either a male or a female member of the biological family Canidae, including Canis
familiaris, and including also any other member of that family at any time owned, possessed or
harbored.
FIERCE AND DANGEROUS DOG: A dog (other than a dog belonging to a law enforcement
agency and acting pursuant to direction of its law enforcement handler) which dog:
(A) Has without justification bitten a human being; for purposes of this definition, it is not
justification that the human being when bitten was interfering with the dog's attack upon another
human being or animal; or
(B) Has menaced a human being which human being was not on the property of the dog's owner.
MENACE: To engage in unfriendly behavior which if committed by a human being would
constitute an assault or a battery within the meaning of Chapter 3 of this Title.
OWNER: Any person owning, possessing, harboring or having in his or her control a dog within
the City, and "own" means owning, possessing, harboring or having in his or her control.
PRIVATE PROPERTY OPEN TO ENFORCEMENT: Private property open to the public; and
condominium or PUD common area; and condominium limited common area which is not
reserved for the use of the owner; and the common use areas of a mobile home park, or travel
trailer court or park; and any other premises with respect to which a person with a right of
possession superior to the owner's has invited the Department to attend to a matter involving an
owner's dog.
5-7-020: ADMINISTRATION:
The administration and enforcement of this Chapter shall be in the Department, except that the
Clerk shall collect license fees and issue license tags. Being an owner in the City, and the
purchasing of a license, either or both, constitutes consent to the provisions of this Chapter. This
Chapter is enacted in the interests of public health, public safety, and the preservation of the
public peace.
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5-7-030: CITY POUND:
The Department shall maintain and operate a City pound for the keeping and disposing of any
dog impounded according to the provisions of this Chapter.
5-7-100: LICENSE; FEE:
No owner shall own a dog older than four (4) months of age within the City without paying a
license fee for such dog. The amount of the license fee for a male dog which has been neutered,
for a female dog which has been spayed, for a female dog not spayed, and for a male dog not
neutered shall be fixed for each such category from time to time by resolution of the Council. No
license fee shall be paid for less than one year. License fees shall be paid to the City Clerk, and
licenses shall be issued by the City Clerk; license fees are due on or before January 2 of each
year, or within ten (10) days after the owner acquires the dog, whichever later occurs. The Clerk
shall furnish with each receipt a metal license tag which shall be stamped with the number to
correspond with the number of the receipt and the fiscal year for which issued. The Clerk shall
keep a suitable record of the receipts issued under the provisions of this Chapter.
5-7-110: KENNEL FEE:
The owner at any one time of three (3) or more dogs over four (4) months of age shall, in
addition to the license fees provided in this Chapter, pay a kennel license fee fixed from time to
time by resolution of the Council.
5-7-120: RABIES VACCINATION; NEUTERED STATUS:
No owner shall own a dog older than four (4) months of age within the City without that dog's
having been vaccinated against rabies by or under the direct supervision of a veterinarian
licensed or legally permitted to practice veterinary medicine in Idaho with a rabies vaccine
currently licensed as such by the United States Department of Agriculture. A dog more than
three (3) months of age that is acquired or moved into the City must be vaccinated within thirty
(30) days of purchase or arrival, unless there is documented evidence of current vaccination in
another jurisdiction. No license shall be issued for any dog unless the owner shall present to the
Clerk at the time of payment of the license fee for such dog, a certificate of such a veterinarian
that such dog has been currently vaccinated for rabies with such a vaccine. The owner shall also
present to the Clerk at that time the certificate of a licensed veterinarian that such dog has been
spayed or neutered, if such status is claimed.
5-7-130: LICENSE TO BE ATTACHED TO DOG COLLAR:
The owner at the owner's expense shall attach the metal license tag to a collar kept upon the neck
of the dog so licensed.
5-7-200: FALSE REPRESENTATIONS:
No owner shall make a false representation as to the time during the license year when a dog
under that owner's control was brought into the City, for the purpose of avoiding paying the
amount of license required of him by the provisions of this Chapter; to do so is a misdemeanor.
5-7-210: IMITATION LICENSE:
No owner shall suffer or cause a number and collar to be put or kept on any dog with intent to
avoid payment of a license fee; to do so is a misdemeanor.
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5-7-220: RUNNING AT LARGE PROHIBITED:
No owner shall suffer a dog owned, possessed or harbored by that owner, or in that owner's
control, to be found at large upon the streets or alleys of the City, or in any public place in the
City, or upon private property open to enforcement, except when such dog is:
(A) Attached to and controlled by a leash not exceeding eight feet (8') in length.
(B) Confined in a motor vehicle.
(C) In an area of the public park or other public grounds of the City which the Council has
designated for use, subject to such rules and regulations as may be prescribed, for the training or
exercise of dogs and is under the effective control of a responsible person by whistle, voice or
other command.
The Department may enter upon private property open to enforcement, for the purposes of
enforcement of this Section.
5-7-230: FEMALE DOGS IN HEAT:
No owner of any female dog shall permit or suffer the same to run at large while in heat; to do so
is a misdemeanor.
5-7-240: NUISANCE DOGS:
No owner of any dog shall fail to exercise proper care and control of such dog to prevent it from
becoming a nuisance by excessive, continuous or untimely barking, by molesting passersby, by
chasing vehicles, by attacking other domestic animals or by trespassing upon public or private
property in such a manner as to damage the property, including but not limited to by defecating
and urinating thereon; to do so is a misdemeanor.
5-7-250: FIERCE AND DANGEROUS DOGS:
A fierce and dangerous dog is a public nuisance. No owner of a fierce and dangerous dog shall
under any circumstances ever suffer the same to be at large; to do so is a misdemeanor. Each day
that such dog is suffered to be at large shall constitute a separate violation of this Chapter. A
fierce and dangerous dog which commits an act after September 8, 1994, which act is a defining
act of being a fierce and dangerous dog, shall be impounded unless the owner places such dog in
quarantine with a licensed veterinarian as provided below.
5-7-260: INTERFERENCE UNLAWFUL:
It shall be unlawful for any person to hinder or molest any person who may be engaged in
seizing, keeping or removing any dog, or who is lawfully engaged in killing the same or
removing the carcass in conformity with the provisions of this Chapter; to do so is a
misdemeanor.
5-7-270: FAILURE TO PROVIDE CARE:
It shall be unlawful for any owner to fail to provide a dog with sufficient good and wholesome
food and water, proper shelter and protection, veterinary care, when needed to prevent suffering
and humane care and treatment; to do so is a misdemeanor. The Department may impound such
a dog for its protection; disposition shall be as provided below.
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5-7-300: IMPOUNDING OF UNLICENSED OR AT LARGE DOGS:
All dogs not licensed and collared as herein provided, and all dogs found running at large, and all
fierce and dangerous dogs, are hereby declared to be public nuisances and are subject to being
taken up and impounded by the Department. Every dog so impounded shall be retained in the
pound for a period of forty eight (48) hours. The owner of a dog, other than a diseased or fierce
and dangerous dog, may redeem the same by procuring any due or overdue license, and paying
in addition thereto an impoundment fee together with a sum per day for the board and care of
such dog fixed for each such category from time to time by resolution of the Council.
5-7-310: DISPOSITION OF IMPOUNDED UNLICENSED DOGS:
At the expiration of forty eight (48) hours after the impounding of an unlicensed dog, other than
a diseased or fierce and dangerous dog, the Department is authorized to transfer such dog to any
person not the owner thereof for a sum deemed reasonable by the Department; the person
adopting such dog shall pay for a license and deposit a sum to secure neutering of the dog, which
deposit is returnable upon furnishing to the Department proof of neutering. In case such dog is
not redeemed or sold as herein provided, the Department shall kill the same, or deliver the dog to
a veterinarian for destruction, in either case in a humane manner, and the carcass shall be
disposed of either by burial or cremation.
5-7-320: DISPOSITION OF IMPOUNDED LICENSED DOG:
Any impounded licensed dog shall be kept at least an additional seventy two (72) hours. The
Department shall within such five (5) days of impoundment make a reasonable and diligent
effort to notify the owner or a representative of the owner that impoundment has occurred. If the
owner of such a dog, other than a diseased or fierce and dangerous dog, pays any due or overdue
license fees, and the costs and fees of the pound, the Department shall release the dog to the
owner; otherwise, the Department may dispose of a dog, as provided in Section 5-7-310.
5-7-330: QUARANTINE OF DOGS:
(A) Any impounded dog may be quarantined, if the Department suspects it may be diseased.
(B) Any fierce and dangerous dog having bitten a human being or another animal must be
quarantined.
(C) Any dog may be impounded and must be quarantined if bitten by an animal suspected by the
Department of being rabid.
(D) In the event of quarantine, the owner shall, or if the owner fails or refuses to do so, the
Department shall deliver the dog to a licensed veterinarian for safekeeping and observation for
not less than ten (10) days according to that veterinarian's best professional judgment as to the
period and methodology of observation for diseases communicable to humans, including rabies.
The cost of such quarantining shall be borne by the owner as an item of restitution in any
prosecution for a violation of this Chapter, or as part of the fee for an otherwise lawful
redemption of the dog.
(E) Restitution or fees received with respect to quarantining shall be considered revenue
allocable to the budget for animal control. Should the owner request in writing that the dog be
Page 21 of 23
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September 23, 2010
humanely destroyed in lieu of quarantining, quarantine shall proceed only to the extent necessary
to rule out any risk of a bite victim's exposure to rabies going undetected.
5-7-340: DISPOSITION OF DISEASED DOGS AND OF FIERCE AND DANGEROUS
DOGS:
(A) Any impounded or quarantined dog, licensed or unlicensed, suffering from serious injury or
disease, may be humanely destroyed at the discretion of the Department, and must be so
destroyed if a licensed veterinarian determines that the dog is afflicted with rabies or other fatal
disease or injury.
(B) Any impounded or quarantined licensed dog afflicted with an incurable and debilitating, but
not necessarily fatal, disease or injury must be humanely destroyed, unless redeemed by the
owner within five (5) days after the report of the results of quarantine or medical examination is
available to the owner at the office of the veterinarian.
(C) Any impounded or quarantined unlicensed dog afflicted with an incurable and debilitating,
but not necessarily fatal, disease or injury must be humanely destroyed.
(D) A police officer or sheriff's deputy within the City may at any time kill a dog found running
at large (it is hoped the brain of the dog will not be damaged by the killing), when in the
judgment of that officer:
1. Probable cause exists that the dog is a fierce and dangerous dog that has bitten a human
being or is currently menacing a human being, and
2. It is not practicable safely to impound the dog.
(E) It shall be lawful for any person acting in good faith to kill such a dog in defense of a human
being under circumstances that injury has already occurred and continued injury is threatened, or
that clear and present danger of physical injury to that person exists (it is hoped the brain of the
dog will not be damaged by the killing); such a killing of a dog must be promptly reported to the
Department.
(F) If a dog is impounded which the Department believes is a fierce and dangerous dog the
Department shall either issue a citation under this Chapter for an offense one element of which is
a fierce and dangerous dog, or shall give notice to the owner that the dog is considered fierce and
dangerous, and that the owner has ten (10) days within which to file a written request for a
hearing in the matter.
(G) If a citation was issued, and should the prosecution result in an adjudication of guilty, the
dog in question is determined to be fierce and dangerous as of the time of such adjudication or
the final adjudication upon any appeal from the same.
(H) If no citation was issued, and the owner files a written request for a hearing in the matter, the
same shall be set by the City Manager and before the City Manager or a hearing officer
designated by him in the notice of hearing, for a time not less than fifteen (15) nor more than
thirty (30) days after that written request is received. Notice shall be given to the owner, to the
Department, to the City Attorney, and to any victim known to the Department; failure to give
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September 23, 2010
notice to a victim shall not be considered a jurisdictional defect. At the hearing, and after
listening to the witnesses, the City Manager shall reach a determination and give a copy of the
same to all persons receiving notice of the hearing. An appeal from the decision of the City
Manager may be lodged by filing a written notice of such appeal with the City Manager and
otherwise as provided in Idaho Rules of Civil Procedure, rule 83(c) and following, to be heard as
an appellate proceeding.
(I) In the event a dog is determined to be fierce and dangerous as provided in subsection (G) or
(H) above, or if the owner does not dispute the matter, the dog shall be humanely destroyed after
the final adjudication under prosecution, the completion of the administrative determination and
any appeals, or the running of the time for the filing of a written request for hearing without any
such request being filed, whichever is the chain of events, unless the owner within ten (10) days
thereafter provides:
1. A securely fenced enclosure in which the dog is kept at all times out of which
enclosure the dog cannot escape and into which enclosure no child can gain entrance, and
through which enclosure no child can insert any part of its body; without limiting the
generality of the foregoing, such enclosure must have a top and a bottom as well as sides,
and the sides, top, and bottom must be securely and continuously connected; provided
that such dog may also be within the owner's dwelling, or outside that dwelling and
enclosure when securely attached to a leash as provided below in this subsection; or
2. A surety bond in the amount of five hundred thousand dollars ($500,000.00) in favor
of the City against the running at large of the dog; and public liability insurance in such
amount to indemnify any person injured by such dog, to include all medical expenses,
loss of income, and other damages whether or not special; in the event such bond and
insurance are provided, the dog shall at all times be in the owner's dwelling, or under
physical restraint fully capable of preventing the dog from going anywhere off the
owner's property, or securely attached to a leash as provided below in this subsection.
"Securely attached to a leash" means attached to a leash eight feet (8') long or shorter,
held by a person, which leash and person are fully capable of preventing the dog from
going anywhere unintended by the person holding the leash; and such person shall at all
times fully control the dog so as to prevent its becoming detached from the leash and to
prevent its physically contacting a member of the public; a failure to maintain that control
is a misdemeanor.
5-7-350: RECORDS:
The Department shall keep a record of all dogs impounded, which record shall contain a
description of the dog, the place where, and the date when, taken into custody or when delivered
to the City pound, and showing the disposition of the same.
5-7-360: PENALTIES:
Any violation of this Chapter (Section 5-7-010 et seq.) not otherwise classified in the relevant
section is an infraction; except that any violation is a misdemeanor if injury to a person or
property results.
Section 12: Title 5 Chapter 8 is repealed:
5 4 01 0. HICHW A V 55 FROM MISSION STREET TO W A RR N VU A C!1 T RO A D.
.� U VTOZii'�rl IT1T.�.-7-iZc�OTITrIZi/''p'i'�OTrfJTiCn'I7TT�'—rrL
(A) Speed Limit: The speed limit along Idaho Highway 55 from Mission Street to Warren
„d that s ,ch s eea limit be s osted
(B) Penalty: Any person exceeding the twenty five (25) mile per hour speed limit shall be guilty
Section 13: This Ordinance shall take effect immediately upon its passage and approval.
PASSED AND APPROVED BY THE MAYOR AND COUNCIL OF THE CITY OF McCALL,
IDAHO, THIS 23 DAY OF SEPTEMBER, 2010.
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CITY OF McCALL
Valley County, Idaho
onald C. Bailey, Mayor
Page 23 of 23
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September 23, 2010