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6. Ordinance 1719 - Handheld Devices - 1st ReadingCITYOF MW KoT. 1City of Kalispell "AL1,MMMM,E OFFICE OF THE CITY MANAGER MONTANA TO: Mayor Fisher and Kalispell City Council FROM: Doug Russell, City Manager SUBJECT: Ordinance 1719 — Driving and Handheld Electronic Communication Devices MEETING DATE: December 17, 2012 Attached to this memo is the hand-held electronic communication device ordinance that was requested to come before council for action. BACKGROUND: At a previous meeting, the City Council directed staff to submit an ordinance related to the use of wireless communication devices. The Chief of Police contacted multiple jurisdictions and submitted an ordinance based upon the ability to enforce the potential legislation. ALTERNATIVES: Various alternatives have been discussed, including adopting the ordinance, not adopting the ordinance, adopting a resolution supporting consideration by the State of Montana, education related to cell phone use while driving, etc. Following discussion at the November 26 work session, Council elected to take action on the proposed ordinance. FINANCIAL IMPACT: The fiscal impact would be negligible as enforcement would be blended into standard work activities. There would be some costs for education, including signage, though it is not anticipated to require additional appropriations. RECOMMENDATION: It is recommended that the City Council take action on Ordinance 1719 as requested at the work session. Respectfully Submitted, D ug R sseIl, City Manager www.kalispell_,com ORDINANCE NO. 1719 AN ORDINANCE AMENDING THE CITY OF KALISPELL MUNICIPAL CODE REGARDING THE REGULATION OF THE USE OF HANDHELD DEVICES WHILE OPERATING A MOTOR VEHICLE TO BE CODIFIED AT CHAPTER 17, DECLARING AN EFFECTIVE DATE, AND AUTHORIZING THE CITY ATTORNEY TO CODIFY THE SAME. WHEREAS, the Kalispell Municipal Ordinances do not currently specifically regulate the use of hand held devices while operating a motor vehicle; and WHEREAS, the Kalispell City Police and law enforcement in general, reports increasing numbers of distracted driving incidents involving the use of hand held devices while operating a motor vehicle; and WHEREAS, it is in the best interests of the public health and safety of the City and its residents to amend the Municipal Code regulating the use of handheld devices while operating a motor vehicle in the City in order to reduce the number of distracted driving incidents. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: SECTION I. The City of Kalispell Municipal Code codified at Chapter 17 of the Code is hereby amended as set forth in Exhibit "A", attached hereto and incorporated fully herein by this reference. SECTION H. The City Attorney is hereby authorized and directed to recodify this Ordinance. SECTION III. This Ordinance shall take effect thirty (30) days after its final passage. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL THIS DAY OF , 2013. Tammi Fisher Mayor ATTEST: Theresa White City Clerk Exhibit "A" Chapter 17 MOTOR VEHICLES AND TRAFFIC Article 3 OPERATION OF VEHICLES 17-1 Definitions (additions) Handheld Electronic Communication Device: Includes wireless or cellular phones, personal digital assistants (PDAs), Blackberry's, smartphones, laptop and notebook computers utilizing VOIP (voice over internet protocol) technology, wireless and cellular phones utilizing push to talk technology, GPS systems, navigational systems, and any other mobile communication device that uses shortwave analog or digital radio transmissions between the devices and a transmitter to permit wireless communications to and from the user to the device. Hand Free Device: An external device that connects to a wireless telephone, wireless communications device or electronic communications device that allows use of the device without touching the telephone or wireless or electronic communications device with one's hands, and includes voice activated technologies that can be utilized without touching the device. 17-22 Care and Prudence Required. 17-22-1 Use of Handheld Electronic Communications Devices A. Use; Possession: No person shall use or have in their immediate physical possession a handheld electronic communications device while operating a motorized vehicle, motorcycle, quadricycle, bicycle or other mode of transportation while on a public highway as defined in Montana Code Annotated section 61-1-101 (23) within the city limits. B. Immediate Physical Possession: Means touching the handheld electronic communications device, or physically holding the device in one's hand or up to one's ear. Simply having the electronic communications device on one's person or in a motor vehicle does not constitute immediate physical possession. C. Exceptions: 1. This provision shall not apply to any person reporting a health, fire, safety or police emergency. 2. This provision shall not apply to governmental fire agencies, ambulance services, law enforcement agencies, emergency responders, or any other "authorized emergency vehicle" as defined in Montana Code Annotated section 61-8-102(2)(a). 3. This provision shall not apply to passengers in a motor vehicle, or persons using a handheld electronic communications device while maintaining a motor vehicle in a stationary position, not in gear, while in a parking lane or space out of moving traffic lanes. 4. This provision shall not apply to persons using a "hands free device" for voice communication, provided the driver does not touch the wireless or cellular telephone through which that device functions while operating or using the vehicle. 5. This provision shall not apply to drivers using two-way radios while in the performance and scope of their work related duties. D. Violation; Penalty: Beginning July 1, 2013, a person who violates this section shall be deemed to have committed a municipal infraction, a civil offense, and for a first violation, a civil penalty of not more than one hundred dollars ($100.00) shall be imposed, and for each repeat violation, a civil penalty of not more than three hundred dollars ($300.00) shall be imposed. Theresa it From: Bill Leingang [willie3@centurytel.net] Sent: Wednesday, August 08, 2012 9:43 AM To: Theresa White Subject: Cell Phones Dear Sirs., Now that both Whitefish and Columbia Falls have both passed ordinances against cell phone usage it is time for both the city of Kalispell, and the County of Flathead to get serious about this issue. If you are in doubt about the lack of sanity displayed by people with cell phones. please drive up and down 93 north during rush hour and observe the violations that happen while they are on the phone. I fear a death and a huge lawsuit for the lack of addressing this issue on our city and county streets. Bill Leingang 281 Sulky Lane Kalispell, MT. 59901 -Theresa White From: Dick Stotts [polygraph@bresnan.net] Sent: Friday, September 21, 2012 10:12 AM To: Theresa White Subject: Use of Cell Phones I have been watching with total amazement at the talk of the newest issue; the use of cell phones while driving. This is an absolute "no-brainer". I served as a police officer here for 20 years and have a little insight about driving issues and in -attention behind the wheel. At the time, seat belts were not even required to be worn by anyone. We have evolved from that era to having to wear seat belts to save our own lives. Now people are driving "phone booths" down the road and I have witnessed many "near misses", often times with the offender not even knowing they endangered someone because they were too involved in their conversation. I am not at all against cell phones while driving, but there are enough "hands -free" devices available that no one should have to drive down the road holding and talking on a cell phone. I can't believe that Kalispell is behind Columbia Falls, Whitefish, and most of the state in enacting some type of a law forbidding the use of cell phjones without a hands -free device. Mayor Fisher made a comment about enforcing the laws we have. I assume that would mean inattention while driving following an accident. That is too late for the person walking down the road when two drivers on cell phones meet each other and don't notice the person walking. Time to wake up and get in the real world. -Dick Stotts - 76 Grandview Drive, Kalispell 1 Theresa White From: Margot Jaumotte [margotjl 63@hotmail.com] Sent: Wednesday, September 26, 2012 2:24 PIVI To: Theresa White Subject: cell phone use while driving Dear City Council Members, I am in favor of a cell phone use ban while driving in the city of Kalispell. My life and the lives of others are in the hands of our cities drivers and their full attention to that task is needed and should be required by law. Thank you, Dave Jaumotte Kalispell, Mt resident Theresa White From: Renn [rencor9centurytel net] Sent: Thursday, September 27, 2012 8:26 AM To: Theresa White Subject: Cell Phone Ban Good Morning Council Members: PLEASE, DO consider instituting a COUNTY -WIDE cell -phone or other obvious while -driving distractions BAN for all 'Motorists. We have seen SO MANY incidents of drivers crossing the center line, going off the road onto the rumble strips, jerking back onto the highway etc., etc. that COULD have caused serious and potentially fatal accidents. We think the officials would see a significant down -turn in Flathead County accident statistics with a ban in place. We would very -definitely support a County -Wide cell -phone ban. Thank you. Charles and Rennie Corrigan Doug Russell City Manager 'City of Kalispell 2-01 1't Avenue East Kalispell, Montana 5990)1 M rZEN � M W I I Like many jurisdictions around the nation, the City of Kalispell is grappling with the growing problem irresponsible use of cellphones and other electronic devices while operating a motor vehicle. Texting and cellphone use while driving is a dangerous practice and should be discouraged. However, as the Ippointed Emergency Coordinator for the Amateur Radio Emergency Service in Flathead County, I ask that you consider an exemption for federally licensed Amateur Radio operators in any future rulemking a . I Recently, the city of Columbia Falls, Montana,, enacted a similar ordinance that contains the following -x,xemption- (6) This provision shall not apply to drivers holding a valid amateuti-_ radio operator license issued by the Federal Communications Commission while using a two-way radio." (Ord. No. 733, Chapter 10.80) Such an exemption would allow amateur radio operators to fulfill one of their primary principles as defined by FCC Part 97, which states in part: (a) Recognition and enhancement of the value of the amateur mrvice to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications*$*" fhtto-Lww_w.arri.ore/vart-97-amateur-radio) Amateur Radio provides and invaluable public service; this is especially true while mobile. The use of two-way mobile radios does not pose the same areactions as cellphones. Therefore, their use while dng should not be restricted. Please ensure that this letter is distributed to the Mayor, all council members, and department heads. Thank you for taking the time to consider this issue. Do not hesitate to contact me if you have any questions.