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HomeMy Public PortalAboutOrd. 608 - Supporting DocsDate: To: From : Re: OFFICE OF THE CITY ATTORNEY May 12, 1992 City Council City Attorney Report Ordinance Preparation The revised criminal code is before you for third reading and adoption. This memo is is a short guide to the general substance of the proposed ordinance. If you are curious why some new subjects are addressed in this draft Code, you will recall discussions of the fact that City Ordinance violation fines go to the City; state misdemeanor fines go to the State & County. Boise City recommends covering common offenses in the City Code. Chapter 1 has no changes from prior law except verbiage and clarifying changes. "Code" means the entire McCall City Code. "Title" means Tit l e v, Public Safety. Chapter 2 is also housekeeping, but does introduce the concept of an "infraction" and tells us how to decide whether a later section of the Title creates an infraction or a misdemeanor. The difference is that an infraction does not involve jury trial or court-appointed counsel. The amount of the fines set in this chapter is controlled by State la·w, and hasn't changed in years; these numbers used to mean a lot more than the y now do. An effort may be undertaken by the Assn o~hiefs of Police to increase City authority in this area. Chapter 2 provides for accepting such a change . The chapter also sets out the City policy to punish money- making crimes with an e y e to denying a profit to the miscreant, through the use of a civil penalty on top of the fines and imprisonment. Some technical changes have been made in this chapter since first reading, inc l uding dropping some duplicative provisions. Chapter 3 pulls together all the existing MCC provisions about offenses harmful to the person or health of another. We have also added a number of substantive offenses which were recommended by the Boise Prosecutor as common offenses for which our City, like theirs, might best create a remedy. Much language was borrowed from the Idaho Code where it seemed the legislature had done a better job of wordsmithing than we had done in the past. Included in this Chapter are assault & battery, including domestic violence; our first controlled substance ordinance; fireworks [the open season for sales has been shortened, and a technical change made to make sure it does not override the UFC unless so stated] ; hazardous material transport [to correct a Staff report, Ma y 12, 1992 page 1 present deficiency that we had no handle on certain dangerous activities]. Chapter 4 continues to pull together and refine offenses against property: arson and related fire offenses; theft [largely borrowed definitions from Idaho Code]. Chapter 5 addresses offenses against the public peace; liquor in parks & other disorderly conduct including trespass on business premises; nuisances; junk autos; trespass and malicious mischief; false alarms and reports; unlawful assembly; firearms violations; vehicle and boat violations; and parking regulations. Under these parking provisions, the Council is to set the basic, promptly paid parking violation fines by resolution. (The delayed payment penalty is twice the basic one.) Therefore, a resolution is also being presented. Staff report, May 12, 1992 page 2 .. .. Date: To: From : Re: OFFICE OF THE CITY ATIORNEY May 26, 1992 City Council City Attorney Report Ordinance Preparation I have placed before you tonight a Summary of Ordinance 606, a Resolution approving that Summary, and Ordinance 608 which recodifies the Leash Law into Title 5 as enacted by Ordinance 606. To have the revised misdemeanor laws fully in effect, it is necessary to: 1. Adopt tonight the resolution approving the Summary; 2. Adopt Ordinance 608 tonight by waiving the three-reading rule, for publication at the same time as the Summary. There are no changes of any kind in 608 from what is now on the books, except to change the section numbers to avoid accidental overwriting of the leas h law by 606. RESOLUTION NO. _/l:,-92 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF McCALL, IDAHO, RELATING TO APPROVAL OF THE SUMMARY OF ORD. 606. WHEREAS 1. Ordinance 606, relating to the public peace, etc., is some 33 pages in length, and a summary of it has been prepared that is 7 pages in length, 2. The Idaho Code permits publication of a summary in lieu of a verbatim publication of the entire ordinance, and 3. The cost of publication is directly related to the length of the material published; BE IT RESOLVED by the Mayor and Council of the City of McCall that: Section 1. The document entitled "A Summary Pursuant to Idaho Code 50-901A of City of McCall Ordinance No. 606," pages one through seven, is approved by the Mayor and Council. Section 2. Such Summary shall be published in the Central Idaho Star-News forthwith. Passed and approved May 28, 1992, 1992. Mayor ATTEST: City Clerk 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 t he Mayor. Chapter 2 . contains General Proyisions 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 e x ecution 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 abutt i ng 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 e x ercising 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 1 4, 199 2 page 5 Section 5-5-602 classifies and prohibits unlawful assembl y 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, e x cept 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 unde r the influence. Chapter 6. is created relating to vehicle and Boat Regulation (Section 2 of this ordinance merely renumbers e x isting 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 0.08%, and speeding. Section 5-6-103 classifies violations o f this subchapter according to consequences of the conduct . Parking regulation is covered in a subchapter to this chapter. Section 5-6-201 confers authorit y 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 Dist r ict; prohibits displaying vehicles for sale within a right of way, or washing, greasing, oiling, or repair in a right of way, e x cept 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 1 4, 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 t he 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 pr ovision 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: City Clerk STATEMENT OF LEGAL ADVISOR OF CITY The foregoing SUMMARY is true and complete and provides adequate notice to the public. Edward G. Burton City Attorney and Prosecutor SUMMARY OF ORD. NO. 606, of May 14, 1992 page 7