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HomeMy Public PortalAboutOrd. 606 Public Peace ORDINANCE NO. 606 AN ORDINANCE OF THE CITY OF MCCALL, IDAHO, RELATING TO THE PUBLIC PEACE; REVISING AND RECODIFYING THE ORDINANCES RELATING TO POLICE REGULATIONS, TRAFFIC, AND. ILLEGAL FIRES; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF MCCALL, IDAHO, AS FOLLOWS : Section 1 . Titles V, VI, and VII, McCall City Code, are repealed, _and re-enacted as Title V, Public Safety, as follows, save and except Chapters 7, 8 and 9 of Title V which are recodified in Section 2 of this ordinance: TITLE V PUBLIC SAFETY Chapter 1 . Police Department Organization. Duties. and Authority 5-1-101 DEFINITIONS . In this Title: (A) "Chief" means the Police Chief, an officer of the City as provided in Title 1 of this Code. (B) "Code" and "this Code" means the McCall City Code. (C) "Department" means the Chief, those sworn peace officers employed by the City, reserve peace officers on active duty with the City, and other City employees assigned to be supervised by the Chief. 5-1-102 DUTIES OF THE DEPARTMENT. The Chief and, through him and as directed by him, the Department, has the duty within the limits imposed by the resources of the Department to preserve the public peace and to see that all laws and regulations of this Title and of the criminal laws within the Idaho Code are enforced within the City. Whenever any violation of such laws or regulations shall come to its knowledge or be reported to it, it shall cause the requisite investigation and report to be made; and shall when in the judgment of the Chief it is merited, seek prosecution by the City or County Prosecutor as may be appropriate. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 1 5-1-103 ENFORCEMENT RESPECTING OTHER TITLES OF THIS CODE. (A) The Chief and, through him and as directed by him, the Department, is vested with the authority of the Mayor to enforce this Code. Such authority is subordinate to the authority of other Departments to determine the presence or absence of Code compliance with respect to technical matters entrusted to their care, such as for one example the interpretation of the Building Code. The Chief, in consultation with the City Prosecutor and the City Department head having jurisdiction, shall cause service of citations respecting misdemeanors in process of commission arising under the other Titles of this Code. (B) In the exercise of this authority, the Chief shall be responsive to the direction of the Mayor. Chapter 2 . General Provisions 5-2-101 DEFINITIONS . (A) An "infraction" is an offense so labeled in the provisions defining the offense in this or any other Title of the McCall City Code. (B) A "misdemeanor" is any other violation of this Title or of any other Title of the McCall City Code. (C) A "person"means 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 . 5-2-102 CRIMINAL AND CIVIL PENALTIES . (A) An infraction is punishable by a fine not to exceed $150 per offense; and also, with respect to infractions of the motor vehicle code or parking regulation provisions of this Title, as provided in the Idaho Code with respect to driver' s license points, suspension, and revocation. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 2 (B) A misdemeanor is punishable by a fine not to exceed $300 per offense, by imprisonment not to exceed 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. (C) A civil penalty not to exceed $1, 000 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 tranquillity; 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 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 1 of this Code, continuing offenses are deemed to be a separate offense committed each day. 5-2-103 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 felony charge. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 3 5-2-104 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 5-3-101 (A) (3) and (B) . Chapter 3 Offenses harmful or threatening to veoRle Subchapter A. Assaults and Batteries 5-3-101 DEFINITIONS (A) "Assault" means (1) an unlawful attempt, coupled with apparent ability, to commit a violent injury on the person of another; or (2) 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 (3) 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. (B) "Family or household member" includes : (1) a spouse, or former spouse; (2) person related by blood or marriage; or (3) persons who reside or have resided together; and (4) persons who have a child together. (C) "Battery" means ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 4 (1) any willful 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 (2) without limiting the generality of the foregoing, the physical injury, sexual abuse or forced imprisonment of a family or household member. 5-3-102 PROHIBITED ACTS . It is unlawful for any person to commit assault or battery with respect to any other person. Subchapter B. Controlled Substances 5-3-201 DEFINITIONS (A) "Controlled substance, " "deliver, " and "manufacture, " mean anything whatsoever that is so defined in Idaho Code 37-2701, and 37-2702 through 37-2714, inclusive. (B) "Commercial unit" means 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 . 5-3-202 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 possesses a controlled substance. The first offense possession of not more than two commercial units of marijuana for personal use may in the discretion of the City Prosecutor be charged either as a misdemeanor or as an infraction depending upon circumstances; all other violations of this section are misdemeanors . The Prosecutor shall consider the character and demeanor of the defendant, and the defendant ' s attitude toward the offense and the prosecution thereof, in exercising such discretion. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 5 (C) For any person to possess drug paraphernalia as defined in IC 37-2701 . Subchapter C. Furnishing Harmful Substances to Minors 5-3-301 UNLAWFUL PURCHASE OR DELIVERY. (A) It is unlawful for a person, being over the age of 18 years, . (1) to purchase a cigarette, tobacco, or an alcoholic beverage, for delivery to a minor, or (2) to 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. Subchapter D. Fireworks and Explosives 5-3-401 DEFINITIONS Definitions in the Uniform Fire Code apply to this subchapter D, as well as the following definitions : (A) "Discharge" means explosion or pyrotechnic combustion. (B) "Fireworks package" means an air-tight container containing permitted fireworks . (D) "Permitted fireworks" means fireworks meeting the following description: (1) Cone fountains with pyrotechnic composition not exceeding fifty grams each; or (2) Cylindrical fountains, whether base, spike or handle with pyrotechnic composition not exceeding seventy-five grams each and inside the tube diameter not exceeding three-quarters inch; or (3) Sparklers and dipped sticks not more than ten inches in length or one-quarter inch in diameter made on steel or iron wire ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 6 and Suzuki and Morning Glories with pyrotechnic composition not exceeding four grams each; or (4) Snakes which do not contain bichloride of mercury and pyrotechnic composition not exceeding two grams each. (5) Wheels with pyrotechnic composition not exceeding sixty grains for each driver unit or two hundred forty grains for each complete wheel . The inside tube diameter or driver unit shall not exceed one-half inch; wheels must be secured so as not to move other than around their axis during discharge; or (6) Whistles, without report and which do not move about the ground during discharge, with pyrotechnic composition not exceeding six grams and containing no picric or gallic acid. 5-3-402 UNIFORM FIRE CODE MODIFIED. The Uniform Fire Code, Section 78 . 101, et seq. , regulates fireworks and generally prohibits them. Section 78 .202 is modified by this subchapter (Section 5-3-401, et seq. ) to the extent of Section 5-3-403 . (A) It is unlawful for any person to be in the possession of or to discharge fireworks or explosives, except as expressly permitted in this Subchapter. (B) It is unlawful to sell or offer to sell permitted fireworks that are not in a fireworks package. (C) It is unlawful to cause or permit the discharge of permitted fireworks in dry grass or tree leaves or needles, or at any other location where sparks or flame contact or might contact dry, readily combustible materials . 5-3-403 PERMITTED POSSESSION. Possession of fireworks is lawful in the following cases : (A) A recognized civic organization having a genuine, material existence and purpose separate from obtaining a permit under this section, may make application for a permit for a fireworks display according to Uniform Fire Code Article 78 and Uniform Fire Code Section ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 7 4 . 108, to be held in connection with a national holiday or special local event . The application shall be made to the City Clerk, who shall route it through the Police Chief and Fire Chief and to the Mayor and Council . The Mayor may make or direct such investigation as he may deem appropriate. The permit shall be issued or denied by the Mayor and Council, considered for these purposes to be the Fire Prevention Bureau, based upon consideration of the nature of the occasion, the nature of the applicant, and the public safety. Any permit issued under this paragraph shall be limited to one time only for which issued. (B) Permitted fireworks may be sold in fireworks packages at retail, and be lawfully discharged by the consumer, from noon on July 1 of each year, until midnight on July 5 of each year, provided that their use is not then illegal pursuant to the Uniform Fire Code and the existing natural fire hazard conditions . Permitted fireworks shall not be used or possessed in hazardous fire areas or under hazardous fire conditions the existance of. which may be publicly declared by the Chief. Fireworks in violation of this Section are subject to seizure. 5-3-401 SPECIAL ENFORCEMENT. In addition to the Department, this Subchapter may be enforced by any peace officer sworn as such in Idaho, the Fire Chief or any member of his Department, fire wardens, and persons specifically deputized by any of the foregoing; a citation shall be issued on the uniform state form for an infraction if no damage to person or property occurred, or for one or more misdemeanors if damage occurred or if the offense is a sale. Subchapter E. Hazardous Material Storage and Transpor 5-3-501 DEFINITIONS . In this Title: (A) "Hazardous material" means anything so defined under Federal law, and without limiting the generality of the foregoing, also gasoline, oil, water drawn from a petroleum product storage tank, chemicals, or any combustible or explosive substance. (B) "Hazardous material container" means a tank or other storage device for hazardous material that meets applicable portions of the Uniform ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 8 Fire Code and all applicable Federal and State regulations for tanks and storage devices for the hazardous material in question. 5-3-502 PROHIBITED ACTS. It is unlawful to: (A) transport hazardous material, other than in accord with applicable laws and regulations of the United States, the State of Idaho, and this Code, including without limitation the Uniform Fire Code. (B) maintain any underground storage tank other than in accord with applicable laws and regulations of the United States and the State of Idaho, and this Code, including without limitation the Uniform Fire Code. (C) discharge hazardous material onto the surface of the earth, or into surface or ground waters of the State, or beneath the surface of the earth, other than into a hazardous material container; 5-3-503 SPECIAL ENFORCEMENT. In addition to by the Department, this Subchapter may be enforced by the Building Official, fire wardens, the Fire Chief or any member of his Department, and persons specifically deputized by either Chief. Chapter 4 . Offenses harmful to progerty rights or the public health Subchapter A Unlawful Fires 5-4-101 PROHIBITIONS . It is unlawful deliberately or negligently to start a fire under the following circumstances : (A) In any structure; except, it is lawful to start a fire in a fireplace, incinerator, or stove that is in compliance with the Uniform Fire Code and any applicable air quality regulations . (B) Using as or among the fuel : garbage, rubbish, decaying matter, dead animals or refuse of any kind; excepting, however, leaves and needles dropped by trees, and weeds and other vegetation, when in a safe place and with a written permit issued in accord with the Uniform Fire Code, state fire season ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 9 regulations, and any applicable air quality regulations . It is prima facie evidence of negligence in the starting of a fire, that the fire escaped from the location of the burning, so as to start a grass, brush, forest, or building fire. 5-4-102 SPECIAL ENFORCEMENT. In addition to by the Department, this Subchapter may be enforced by the Building Official, fire wardens, the Fire Chief or any member of his Department, and persons specifically deputized by either Chief. Subchapter B Theft 5-4-201 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 . 5-4-202 DEFINITIONS . The following definitions are applicable to this chapter: (A) "Appropriate . " To "appropriate the property of another to oneself or a third person means : (1) 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 (2) To dispose of the property for the benefit of oneself or a third person. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 10 (B) "Deception" means knowingly to: (1) Create or confirm another' s impression which is false and which the offender does not believe to be true; or (2) Fail to correct a false impression which the offender previously has created or confirmed; or (3) Prevent_ another from acquiring information pertinent to the disposition of the property involved; or (4) 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 (5) 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. (C) "Deprive . " To "deprive" another of property means: (1) 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 (2) To dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property. (D) "Obtain" means : (1) In relation to property, to bring about a transfer of interest or possession, whether to the offender or to another; and (2) In relation to labor or services, to secure its performance. (E) "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. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 11 t (F) "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. (G) "Person" is defined in Chapter 2 of this Title. (H) "Property" means 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 . (I) "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 paragraph H above. (J) "Stolen" is the adjective used to described property which is the subject of a theft . (K) "Stolen property" means property over which control has been obtained by theft . (L) "Value . " The value of property shall be ascertained as follows : ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 12 (1) 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 . (2) 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 : (a) Commercial paper shall be deemed worth its face amount due from the maker or drawer. (b) 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; (c) 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 . (3) When the value of property cannot be satisfactorily ascertained pursuant to the standards in subsections (1) and (2) of this section, its value shall be deemed to be less than $150 . (4) 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. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 13 5-4-203 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; (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 ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 14 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, ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 15 career, financial condition, reputation or business relationships . (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 willfully or intentionally fails to return the vehicle to that place within forty- eight 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. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 16 (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. 5-4-204 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 days or forty- eight 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. 5-4-205 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 . 5-4-206 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. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 17 (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. Chapter 5 . Offenses against the public peace . 5-5-101 DEFINITIONS In this Title : (A) "Private gathering" means a gathering to which invitations are required and includes company parties, class and family reunions, service club functions, church and fraternal picnics, weddings and wedding receptions, and other gatherings sponsored by organizations; (B) "Park" means any and all land owned, leased, controlled or maintained by the City of McCall, Valley County, the State of Idaho, or the United States, for public recreational purposes, including beaches, docks, wharves, piers, campgrounds, picnic areas, boat launching ramps, and land and water; (3) "Public property and facilities" means buildings and fixtures belonging to the City ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 18 of McCall, Valley County, the State of Idaho, or the United States, and includes without limitation appurtenant structures, rest rooms, utility service poles, utility lines, playground equipment, streets, paths, sidewalks, other paved areas, monuments, statuary, bridges, tables, benches, fences, fireplaces or pits, permanent signs and boundary markers, landscaping materials, trees, shrubbery, and flowers, native or imported, and boulders and other landscape features, including rock cliffs and faces adjoining public roads . 5-5-102 DISORDERLY CONDUCT DEFINED. "Disorderly conduct" means violent, noisy, or riotous behavior, and behavior that would be frightening or offensive to a reasonable person who might be expected to be in the vicinity, and includes but is not limited to: (A) Engaging in or soliciting anyone to engage in lewd, lascivious, or dissolute behavior or speech in a public place, or in a place open to the public, or in view from a public place; or (B) Accosting other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms; or (C) Having in ones possession any instrument, tool or other implement for picking locks or pockets or opening locked vehicle doors, or any other implement that reasonably may be inferred to be for gaining access to locked places, while not being by employment a locksmith or otherwise possessed of a business or personal need for such tool, instrument or implement at the time and place in question; or (D) Loitering, remaining, or wandering upon the streets- or public parks or from place to place, without apparent reason or business and refusing to identify oneself and to account for ones presence when requested by a police officer to do the same, if the surrounding circumstances are such as to indicate to a reasonable person with the knowledge and experience of a police officer that the public safety or peace demands such identification; or ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 19 (E) Occupying, lodging or sleeping in any building, structure or place, whether public or private, or in any automobile, truck, airplane or other place or equipment without the permission of the owner or the person better entitled to the possession or control thereof; or (F) being inebriated or under the influence of a controlled substance, in a public place or in any place exposed to public view, and conducting oneself, whether or not by conscious design, in such fashion as to interfere with, or obstruct the free use of any street, sidewalk, or other public way, or place open to the public or exposed to public view; or (G) Loitering, prowling, or wandering upon the private property of another, without visible or lawful business with the owner or occupants thereof; or (H) Loitering, or remaining in a school, or on land surrounding and associated with the school such as but not limited to parking lots and athletic fields, or loitering, prowling, or wandering on streets or vacant property within sight of a school, not having any relationship involving custody of or responsibility for a child attending the school, or any other specific, legitimate reason for being there, and not having written permission to be there from the principal or other chief administrator of the school; or (I) Entering any lands or buildings, or exterior stairways, porches, covered walks, or decks of the same, whether enclosed or unenclosed, for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of such land or building, his agent, or by the person or persons having a superior right of possession to the same; or loitering in such a place and refusing to depart from and remain away from such place, not having any specific, legitimate reason for being there; it is not a legitimate reason to be in a place, that it is susceptible to use for a purpose of the offender if that purpose does ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 20 not serve the interests of the person or persons having a superior right of possession. 5-5-103 PROHIBITIONS. It is unlawful to: (A) Engage in disorderly conduct . (B) Hold a private gathering in a park at which alcoholic beverages are being consumed without a catering permit under the alcoholic beverage control laws; or to refuse to exhibit such permit to a peace officer or other public employee having jurisdiction over the land under Title 8 of this Code. (C) Damage or deface public property and facilities . "Deface" includes without limitation the application of paint to public property and facilities other than in accord with the permission of the owner of the same . (D) Violate any rule or regulation of the public agency managing a park with respect to conduct in that park. (E) Throw a foreign object at or in the direction of a peace officer, fireman, or other public employee engaged in the execution of his office . Subchapter C Nuisances 5-5-301 DEFINITIONS . In this Subchapter (Section 5-5- 301, et seq. : (A) "Waste matter" means any kind of liquid or solid waste, including without limitation trash, household garbage or refuse of any kind; litter; commercial waste; industrial or construction or demolition debris of any kind, such as rubble, broken asphalt, and concrete; crates, cartons, metal, glass; appliances or appliance shells; vehicle bodies and parts; or accumulations of manure. Waste matter also includes anything that is or was in a container as defined in this section, or that is or was in a truck or other vehicle on its way to a landfill or waste transfer site. For waste matter which is hazardous material, see Section 5-3-501 above. (B) "Container" means a garbage can, dumpster, or any other kind of storage device customarily ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 21 sold or rented for use as for temporary storage of waste matter, and lawfully located on the property in question; and. (C) "Nuisance" means : (1) an uncovered container holding waste matter; or a such a container with a cover which is not secure against dogs; (2) waste matter not in a container; (3) waste matter stored in such fashion that it or any of it may enter the waters of a stream or lake, directly or indirectly, or come to be in contact with such waters; (4) waste matter or dry or dead vegetative matter so located as to constitute a fire hazard to buildings or lands, and vegetative matter which will in the ordinary course become such a hazard, but not hay or other agricultural product stored in a fashion customary on farms in the community and in accord with the Uniform Fire Code; (5) waste matter or one or more containers which by reason of its or their location and character is unsightly and interferes with the reasonable enjoyment of adjacent or nearby property; (6) a motor vehicle that is unregistered; or a registered, but inoperable motor vehicle, not being diligently worked upon toward the goal of its becoming operable; or more than one inoperable motor vehicles at a location which is not the lawful location of a motor vehicle repair business . "Inoperable" means lacking one or more parts necessary to lawful operation on the streets; (7) a building that has been condemned as unfit for human occupancy; or, a building that is not enclosed against the weather, by reason of broken or missing windows or doors, or substantial roofing deficiencies, or has rotting or otherwise unsafe floors or walls; except a building damaged by fire or other casualty, which building is being diligently repaired. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 22 5-5-302 PROHIBITIONS. It is unlawful to: (A) cause or permit any vehicle being used for the transportation of waste matter to be so loaded or in such condition or so uncovered that waste matter escapes from the vehicle while being driven; or (B) discharge waste matter onto the surface of the earth or beneath the surface of the earth other than into a container, or into any stream or lake or other water body; or (C) cause a nuisance or permit a nuisance to continue, on property in the possession of the offender, or on any abutting street, sidewalk, or right of way. 5-5-303 PENALTIES AND ABATEMENT. A violation of this chapter as to waste matter is an infraction, and as to vehicles or buildings is a misdemeanor; and in any case is subject to abatement action. Enforce- ment may be by the Department or by the Fire Chief. 5-5-304 ABATEMENT PROCEDURE. (A) The Board of Appeals under Chapter 5 of the Uniform Code for the Abatement of Dangerous Buildings shall be the City Council . The balance of this section governs abatement of nuisances not covered by the Uniform Code for the Abatement of Dangerous Buildings . (B) The existence of a nuisance may be declared by the Chief or the Fire Chief. The declaration shall contain: (1) a short, but descriptive statement of the nuisance which is declared to exist; (2) its location; (3) the name of the person or persons thought to be responsible; (4) a statement of a date, not less than 10 days after the mailing of such notice, which shall be the last date on which the addressee or other claimant of the affected property or offending objects can demand a hearing; ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 23 (5) a statement that such hearing would be for the purpose of determining anew whether the nuisance exists; and (6) directions for the mailing of such a demand for hearing to the City Clerk (7) a statement that if no hearing is demanded, or if the result of the hearing is to the effect that a nuisance exists, the owner or other addressee has ten days to commence and thereafter diligently to pursue and complete abatement by his own action, failing which the City will conduct the abatement and assess back the costs thereof against the property in like fashion as for tax assessments . (B) A copy of such declaration shall be (1) sent by certified mail, return receipt requested, to the last known owner at his last known address; the address given in the real property tax assessor' s records is sufficient; (2) posted in a conspicuous location upon the real property upon which the nuisance is declared to exist; or upon the private property abutting the public property, if the nuisance is on public property; and upon a vehicle in question if one or more vehicles are the nuisance . (C) Hearings shall be conducted in front of the Zoning Board of Examiners and Appeals; if the Mayor and City Council have not appointed such a Board, the hearing shall be in front of the Mayor and Council . (D) In the event a hearing is (a) not demanded, the declaration shall be conclusive upon all persons as to the existence of the nuisance. (2) demanded and conducted, the announcement of the decision of the hearing and entry of it in the minutes of the meeting shall be conclusive upon all persons as to the existence of the nuisance, subject to the right of appeal to the District Court as in the case of appeals from the grant or ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 24 denial of a special or conditional use under the zoning laws . (D) In the event a declaration of a nuisance so becomes conclusive, the Chief shall take steps to cause the abatement of the nuisance by removal of offending materials, whether by fire suppression exercise, by use of City employees, or by letting an appropriate contract in accord with the contracting procedures of the City. The cost of abatement shall be calculated, and shall become a lien upon the property as is provided for building abatement in the Uniform Code for the Abatement of Dangerous Buildings . Alternatively, the costs may be recovered in a civil action brought by the City, or assessed as additional penalties in a misdemeanor prosecution. If the offending material is one or more motor vehicles, the Chief shall see to their sale for salvage, and appropriate notice shall be given to the State motor vehicle title authorities . Subchapter D Trespass and Malicious Mischief 5-5-401 DEFINITIONS In this subchapter, (A) "Property" means real property, including also mobile homes, campers, and like movable personal property intended for use temporarily or permanently as human habitation. (B) "Limited common area" means 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 . (C) "Owner" means, 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. (D) "Personalty" means motor vehicles, motor bikes, bicycles, and other tangible personal property of an owner. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 25 5-5-402 PROHIBITION In is unlawful to enter or to go into the possession of property or personalty of an owner without the consent of that owner, or to exercise any form of dominion or control over any of such property or personalty, 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 personalty 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. 5-5-403 PENALTIES . A violation of this subchapter is an infraction, unless physical damage to an owner' s property has occurred, in which case the violation may be charged as a misdemeanor, with each item of property damaged establishing a separate offense. Subchapter E False Alarms and False Police Reports 5-5-501 FALSE REPORTS . It is unlawful and an 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 an 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 ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 26 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 times without taking proper steps -to correct the condition causing the malfunction. Subchapter F Unlawful Assembly 5-5-601 DEFINITIONS . (A) "Unlawful assembly" means the gathering together of two or more persons with the intent, which may be inferred from the effect : (1) to do another unlawful act; or (2) to do a lawful act in a violent, boisterous or tumultuous manner. (B) "Riot" means 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 . 5-5-602 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. 5-5-603 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 or three persons, to contract for emergency detention space. Subchapter G Firearms 5-5-701 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 ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 27 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. (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. (C) 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 . (D) 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. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 28 4' Chapter 6. Vehicle and Boat Regulation Negligent Driving 5-6-101 NEGLIGENT DRIVING. It is unlawful to operate a motor vehicle in negligent manner within the City. 5-6-102 PRESUMPTIONS . Without limiting the generality of section 5-6-101, 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 0 . 080, 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. 5-6-103 PENALTIES. A violation of section 5-6-101 is : (A) An infraction if there is no resulting injury to a person or to a second person ' s property. (B) In all cases not described in (A) , a misdemeanor. Parking_regulation 5-6-201 AUTHORITY TO REGULATE. (A) The Chief may regulate parking by causing the placement of traffic control devices advising the public that parking is prohibited or restricted. Violations of the restrictions or prohibitions stated on such City signs is unlawful. All signs in place March 19, 1992, or placed at the direction of the Chief after that date, are declared authorized. (B) Curb loading zones may be created by the Chief, upon payment of a permit fee to the City in an amount fixed by resolution of the Council, and upon ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 29 the Permittee ' s erection at each end of such zone an official traffic control device indicating such zone. (C) The authority of the City to place other traffic control devices is delegated to the Chief. Violations of the restrictions or prohibitions stated on such City signs is unlawful . 5-6-202 GENERAL PROVISIONS AND PRESUMPTIONS . (A) It is unlawful for any person to park a motor vehicle for a period of time longer than two hours between the hours of eight o ' clock AM through six o ' clock PM of any day on the following streets : (1) Those portions of Lake Street, of Lenora Street, and of Park Street, that are between First and Third Streets; (2) Those portions of First Street, of Second Street, and of Third Street, that are between Lake and Park Streets . (B) Except when being diligently loaded or unloaded from or to an adjacent business, it is unlawful for a truck larger than a standard pick-up truck, or for a truck trailer, to be parked on a street or alley within the Central Business District as defined on the Zoning Map; or, if not so defined on the Zoning Map, then within the street segments described in subsection (A) above. (C) It is unlawful to park a motor vehicle within a street or highway right of way for purposes of displaying such vehicle for sale; or for purposes of washing, greasing, oiling, or repair, except when the vehicle is undergoing emergency repairs . (D) Whenever an vehicle is ticketed for unlawful parking, the registered owner of the same shall be presumed to have been the operator; such presumption may be overcome only by the owner' s producing another person who admits to the parking violation and pays the penalty. (E) A violation of a State Motor Vehicle Code (Title 49, Idaho Code) provision within the City is unlawful . Violation of a rule or regulation promulgated by the Chief pursuant to authority in such Title 49 is unlawful . (F) Parking tickets or citations shall be infraction citations upon the uniform state form. ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 30 5-6-203 PONDEROSA STATE PARK RULES AND REGULATIONS (A) In Ponderosa State Park all motorized and off-road vehicles shall stay on authorized -and established park roadways . The drivers of all such vehicles operated within such Park shall be licensed or certified as required under State law for the type of vehicle operated. Parking is allowed only in areas designated for that use by the park manager. (B) -It is unlawful to park a vehicle within the boundaries of Ponderosa State Park unless it bears a current motorized vehicle entrance permit issued by the Idaho State Department of Parks and Recreation. (C) Within the boundaries of Ponderosa State Park those persons designated as special deputies pursuant to Rule IDAPA 26 . 01 .2 of the Idaho Department of Parks and Recreation and IC 67-2901 (5) , as well as officers of the Department, are authorized to issue City of McCall parking citations for violation of this section. 5-6-204 PENALTIES FOR PARKING VIOLATIONS. (A) A person liable upon a parking ticket shall pay a penalty as follows : (1) Within forty-eight hours of the time of the issuance of said parking violation ticket, pay to the traffic ticket section of the City Treasurer' s office in full satisfaction of such violation, the penalty fixed by resolution of the City Council with respect to such violations for each such notice left upon his or her vehicle; or (2) Within ten days from the date of said parking violation ticket, pay to the traffic ticket section of the City Treasurer' s office in full satisfaction of such violation an amount equal to twice the penalty fixed under paragraph (1) above. (B) The failure of any owner or operator to make payment to the traffic ticket section of the City Treasurer' s office within the times prescribed is an infraction punishable as provided in Section 5- 1-201 of this Title and as provided in the Idaho Code with respect to motor vehicle infractions . ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 31 Section 2 . Title V, Chapters 7, 8 and 9 are amended by redesignating certain of their sections as follows : former number new number Z5-7-i 5-6-301 z5-:7-3 5-6-302 S -:7-3 5-6-303 5-7-4 5-6-304 5-7-5 5-6-305 8-7-5 5-6-306 8 8- 1: 5-5-201 8-8-2 5-5-202 S 9-i 5-6-401 S2 5-6-402 Z9 9 3 5-6-403 S 9 4 5-6-404 Z5----9=9 5-6-405 5 9-6 5-6-406 by repealing section 5-7-7, section 5-7-6, and reenacting section 5-7-6 as amended as follows : 5-6-307 PENALTIES . A violation of this subchapter (section 5-6-301, et seq. ) is an infraction; except that if injury to a second person or his property results, a violation of this chapter is a misdemeanor. by repealing section 5-9-7 and section 5-9-8 and reenacting 5-9-7 as amended as follows : 5-6-407 PENALTIES. A violation of this subchapter (section 5-6-401, et seq. ) is an infraction; except that if injury to a second person or his property results, a violation of this chapter is a misdemeanor. and by repealing section 5-8-3 and reenacting it as amended as follows : 5-5-203 PENALTIES . A violation of this subchapter (section 5-5-201, et seq. ) is an infraction. Section 3 . Title 1, Chapter 9, Section 9, Subsection (E) is amended by adding at the end: The City Attorney is ex-officio the City Prosecutor, unless and until the Mayor with the advice and consent of the Council appoints a different person to the office of City Prosecutor. ORDINANCE NO. 606, AS ADOPTED May 14, 1992. page 32 Section 4 . This Ordinance shall be in full force and effect from and after its passage, approval and publication as required by law; any violation of any provision of the McCall City Code repealed by this Ordinance, committed before the effective date of this Ordinance may be .prosecuted in like fashion as if such repeal had not occurred. Passed and approved May 14, 1992 . Mayor ATTEST: G City C " rk ORDINANCE NO. 606, AS ADOPTED May 14, 1992 page 33 CERTIFICATE OF RECORDING OFFICER STATE OF IDAHO ) ss COUNTY OF VALLEY) I, the undersigned, the duly appointed, qualified, City Clerk of McCall City, Idaho, do hereby certify the following: 1. That pursuant to the provisions of Section 50-207, Idaho Code, I keep a correct journal of the proceedings of the Council of McCall City, Idaho, and that I am the statutory custodian of all laws, ordinances and resolutions of said City. 2. That the attached Ordinance No. 6 D� is a true and correct copy of an ordinance passed at a regular meeting of the Council of McCall City held on �/jija,, /5! 19�,,7, , and duly recorded in my office; and 3. That said regular meeting was duly convened and held in all respects in accordance with law and to the extent required by law, due and proper notice of such meeting having been given; that a legal quorum was present throughout the meeting and that a legally sufficient number of members of the Council of McCall City voted in the proper manner and for the passage of said ordinance; and that all other requirements and proceedings incident to the proper adoption and passage of said ordinance have been duly fulfilled, carried out and observed; and that I am authorized to execute this certificate. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of McCall, Idaho, this /6--- ' day of 19 9z. Arthur J. chmidt, City Clerk (Seal of the City) A SUMMARY PURSUANT TO IDAHO CODE 50-901A OF CITY OF McCALL ORDINANCE NO. 606 RELATING TO THE PUBLIC PEACE; REVISING AND RECODIFYING THE ORDINANCES RELATING TO POLICE REGULATIONS, TRAFFIC, AND ILLEGAL FIRES; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF McCALL, IDAHO, AS FOLLOWS : Section 1 . of the ordinance repeals Titles V, VI, and VII, McCall City Code, and re-enacts them with modifications as Title V, Public Safety, except for Chapters 7, 8 and 9 of former Title V which are recodified in Section 2 of this ordinance. Section 5-1-101 contains certain definitions of terms used in the rest of the ordinance . Section 5-1-102 summarizes the duties of the Police Chief and the Police Department . Section 5-1-103 addresses the Department ' s duties respecting other Titles of the Municipal Code, and specifies the overall command of the Mayor. Chapter 2 . contains General Provisions Section 5-2-101 contains certain definitions of terms used in the balance of the title, including the terms "infraction, " "misdemeanor, " "person. " It also specifies that where an offense is committed by a person who is not a natural person, the natural person who directed the commission of the offense, and the natural person physically performing the acts constituting the offense, are jointly and severally subject to prosecution and penalties . Section 5-2-102 specifies that an infraction is punishable by a fine not to exceed $150 per offense; and also, with respect to infractions of the motor vehicle code or parking regulation provisions of this Title, as provided in the Idaho Code with respect to driver' s license points, suspension, and revocation; and that a misdemeanor is punishable by a fine not to exceed $300 per offense, by imprisonment not to exceed 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. Section 5-2-102 further provides that a civil penalty not to exceed $1, 000 per commercial unit may be assessed by the Court in the case of controlled substance offenses, delivery of alcoholic beverages or tobacco to minors, habitual property crime offenders, and negligent driving involving SUMMARY OF ORD . NO. 606, of May 14, 1992 page 1 alcohol, and driving under the influence. In determining whether or not to impose such a penalty, the Court is to consider whether the case is within a class of cases that imposes a burden upon health and safety forces and facilities in the City, or threatens the domestic tranquillity; 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 prior convictions for the same or similar offense. Section 5-2-102 further provides that 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. Section 5-2-102 further provides that continuing offenses are deemed to be a separate offense committed each day. Section 5-2-103 provides that the existence of certain other statutes is not a defense. Section 5-2-104 deals with the circumstances justifying an arrest . . Chapter 3 deals with Offenses harmful or threatening to people Subchapter A. deals with Assaults and Batteries Section 5-3-101 defines assault, battery, and family member. Section 5-3-102 prohibits assault and battery. Subchapter B. deals with Controlled Substances . This subchapter is modeled closely on equivalent provisions of the Idaho Code. Section 5-3-201 defines "Controlled substance, " "deliver, " "manufacture, " and "Commercial unit, " and provides that the sworn testimony of an experienced police officer is competent to establish what is a commercial unit . Section 5-3-202 prohibits the manufacture, delivery, or possession with intent to manufacture or deliver, or other possession of a controlled substance, or possession of drug paraphernalia. Section 5-3-202 further provides that the first offense possession of not more than two commercial units of marijuana for personal use may in the discretion of the City Prosecutor be charged as an infraction depending upon character, demeanor and attitude. SUMMARY OF ORD. NO. 606, of May 14, 1992 page 2 Subchapter C. deals with Furnishing Harmful Substances to Minors Section 5-3-301 provides that it is unlawful for a person, being over the age of 18 years, to purchase a cigarette, tobacco, or an alcoholic beverage, for delivery to a minor, or to sell a cigarette, tobacco, or an alcoholic beverage to a minor; and that it is prima facie evidence of intent to violate this ordinance that a person delivers a cigarette, tobacco, or an alcoholic beverage to a minor; and provides that violation of this section is a misdemeanor. Subchapter D. deals with Fireworks and Explosives Section 5-3-401 provides that the definitions in the Uniform Fire Code apply to this subchapter D, and further defines "Discharge, " "Fireworks package, " and "Permitted fireworks . " Section 5-3-402 recognizes that the Uniform Fire Code, Section 78 . 101, et seq. , regulates fireworks and generally prohibits them, and modifies Section 78 .202 to the extent of Section 5-3-403 . Section 5-3-401 specifies that certain fireworks related activities are illegal . Section 5-3-403 provides that possession of fireworks is lawful in certain cases, defines what sorts of organizations may seek a permit and the procedure, specifies a period each year when the sale of permitted fireworks is legal, and restricts their use to that period, authorizes the Fire Chief to ban the sale or use of fireworks during that or any other period when the existence of hazardous fire areas or hazardous fire conditions is publicly declared by the Chief. Fireworks in violation of this Section are subject to seizure . Section 5-3-401 specifies who may enforce the subchapter and how offenses against it are to be classified. Subchapter E. deals with Hazardous Material Storage and Transport Section 5-3-501 defines "Hazardous material, " and "Hazardous material container. " Section 5-3-502 prohibits the transport, or storage, or discharge of hazardous material other than in accord with applicable laws and regulations of the United States, the State of Idaho, and this Code, including without limitation the Uniform Fire Code; and the discharge of hazardous material on the ground or into surface or ground waters, or underground, other than into a hazardous material container. Section 5-3-503 provides authority for enforcement . SUMMARY OF ORD . NO. 606, of May 14, 1992 page 3 Chapter 4 . has to do with Offenses harmful to property rights or the public health Subchapter A has to do with Unlawful Fires Section 5-4-101 prohibits deliberately or negligently starting a fire in specified locations, or using certain fuels, or under certain circumstances, and provides that it is prima facie evidence of negligence that the fire escapes . Section 5-4-102 provides authority for enforcement . Subchapter B has to do with Theft. This subchapter is modeled closely on equivalent provisions of the Idaho Code. Section 5-4-201 provides that 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; and that 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. Section 5-4-202 contains numerous definitions applicable to this subchapter. Section 5-4-203 prohibits theft, and specifies various circumstances that constitute theft. Section 5-4-204 provides that it is prima facie evidence that a person commits theft when he as lessee or renter of the personal property of another fails or refuses to return such property to its owner after the lease or rental agreement has expired, and after written demand for its return is personally served or given; or obtains the lease or rental by giving certain false information. Section 5-4-205 provides that certain conduct is prima facie proof that lodging, food or other accommodation was obtained by theft . Section 5-4-206 provides that certain matters are, or are not, a defense to a charge of theft, in situations of co- ownership, marriage, or employment, or in the context of a civil dispute related to a potential criminal charge. Chapter 5 . relates to Offenses against the public peace. Section 5-5-101 defines "Private gathering, " "Park, " and "Public property and facilities . " Section 5-5-102 defines "Disorderly conduct . " SUMMARY OF ORD. NO. 606, of May 14, 1992 page 4 Section 5-5-103 prohibits disorderly conduct, unlicensed private gathering in a park involving alcohol, refusal to exhibit an alcohol permit, damage or defacing of public property and facilities, violation of any rule or regulation of the park, and the throwing of a foreign object at or in the direction of a peace officer, fireman, or other public employee engaged in the execution of his office. Subchapter C has to do with Nuisances Section 5-5-301 defines "waste matter, " "container, " and "nuisance" . Section 5-5-302 prohibits certain vehicle loading practices; discharge of waste matter onto or beneath the surface of the earth other than into a container, or into any stream or lake or other water body; or causing a nuisance or permit a nuisance to continue, on property in the possession of the offender, or on any abutting street, sidewalk, or right of way. Section 5-5-303 provides penalties, classifies offenses, and authorizes enforcement . Section 5-5-304 provides abatement procedures, and integration with the Uniform Code for the Abatement of Dangerous Buildings . Subchapter D relates to Trespass and Malicious Mischief Section 5-5-401 defines "Property, " "Limited common area, " "Owner, " and "Personalty. " Section 5-5-402 prohibits entering or going into the possession of property or personalty or limited common area of an owner without the consent of that owner, or exercising any form of dominion or control over it, and certain other more specific offenses of a trespatory nature, such as to cut or take down a fence or open a gate; to deface property or personalty; or to fail or refuse to leave property or limited common area or to re-enter. Section 5-5-403 classifies offenses and provides penalties . Subchapter E relates to False Alarms and False Police Reports Section 5-5-501 prohibits and classifies offenses related to: a report to authorities known by the maker to be false; causing a fire or burglar alarm to go off when the offender knows there is no fire or no burglary; not promptly taking steps to notify the authorities that an accidental triggering of the alarm has occurred; or permitting a burglar or fire alarm repeatedly to malfunction. Subchapter F has to do with Unlawful Assembly Section 5-5-601 defines "Unlawful assembly" and "Riot . " . SUMMARY OF ORD . NO. 606, of May 14, 1992 page 5 Section 5-5-602 classifies and prohibits unlawful assembly and riot . Section 5-5-603 authorizes, in the event of unlawful assembly or riot, officers to take offenders into custody for a misdemeanor committed in their presence, and in the event of riot a contract for emergency detention space. Subchapter G has to do with Firearms Section 5-5-701 prohibits: possession of a firearm while committing any other offense; being in possession of a loaded firearm in a public place or place of business, except under certain circumstances; carrying a concealed weapon without a permit; refusing to display such a permit; possession of a firearm on premises where the sale of alcoholic beverages by the drink is licensed; and return of a firearm to its owner . if under the influence . Chapter 6 . is created relating to Vehicle and Boat Regulation (Section 2 of this ordinance merely renumbers existing boat and showmachine provisions such that they will be in this Chapter. ) Negligent Driving is covered in a subchapter to this chapter. Section 5-6-101 prohibits operating a motor vehicle in negligent manner within the City. Section 5-6-102 makes certain conduct or events presumptive evidence of negligence, having to do with collision with a fixed object, crossing the centerline, operating without headlights, a blood alcohol content of 0 . 080, and speeding. Section 5-6-103 classifies violations of this subchapter according to consequences of the conduct . Parking regulation is covered in a subchapter to this chapter. Section 5-6-201 confers authority to regulate parking. Section 5-6-202 provides for two hour parking in the Central Business District; limits truck and truck trailer parking within the Central Business District; prohibits displaying vehicles for sale within a right of way, or washing, greasing, oiling, or repair in a right of way, except emergency repairs; provides a presumption that the registered owner was the operator who parked the vehicle and a procedure for overcoming the presumption; and that parking tickets or citations shall be infractions . Section 5-6-202 further provides that a violation of the State Motor Vehicle Code (Title 49, Idaho Code) within the City is unlawful, as is violation of a rule or regulation pursuant to authority in such Title 49. SUMMARY OF ORD . NO. 606, of May 14, 1992 page 6 Section 5-6-203 continues former law to the effect that those portions of Ponderosa State Park within the City limits are subject to concurrent regulation by the State and City, and provides authority to City officers to enforce City and State licensing and parking regulations in the Park, and makes violations of State rules City offenses; it also authorizes certain State officers to issue citations for violation of this Code. Section 5-6-204 provides for parking penalties to be set by the City Council by resolution, that the penalty for failure to pay a ticket within forty-eight hours is twice the regular penalty, and that failure to make payment is an infraction. Section 2 . of the Ordinance redesignates certain of the sections of former Title V, Chapters 7, 8 and 9 to be within Chapters 5 and 6 of Title V under this ordinance, and classifies offenses under these sections according to the consequences of the violation. Section 3 . of the ordinance amends Title 1, Chapter 9, Section 9, Subsection (E) to provide that the City Attorney is ex-officio the City Prosecutor. Section 4 . of the ordinance provides that it shall be in full force and effect from and after its passage, approval and publication as required by law; and that any violation of any provision of the McCall City Code repealed by this Ordinance, committed before the effective date of this Ordinance, may be prosecuted in like fashion as if such repeal had not occurred. Passed and approved May 14, 1992 . Mayor ATT T: City Cle STATEMENT OF LEGAL ADVISOR OF CITY The foregoing SUMMARY is true and complete and provides adequate notice to the public. a Af�i Edward G. Burton City Attorney and Prosecutor SUMMARY OF ORD. NO. 606, of May 14, 1992 page 7