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4. Ordinance 1360 - 1st Reading - Municipal InfractionsCity of Kalispell Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758 TO: Mayor and City Counci�u74 FROM: Rich Hickel, Assistant City Attorney SUBJECT: Decriminalization of Certain Offenses MEETING DATE: August 21, 2000 BACKGROUND: Currently, violations of City Ordinances are classified as criminal offenses. The 1999 State legislature passed a bill permitting cities to decriminalize violations of city ordinances by designating said violations as "infractions", § 7-1-4124, MCA. The legislature also established a procedure for processing municipal infractions, H 7-1-4150-7-1-4152, copies attached. There are a variety of Ordinance violations which could be properly classified as "infractions". Parking, zoning, and building violations come to mind as "crimes" which could more effectively be prosecuted as infractions. Converting violations of City Ordinances from "crimes" to "infractions" has several advantages. The burden of proof changes from "beyond a reasonable doubt" to "clear and convincing evidence". Classifying an offense as an "infraction" entitles the alleged offender to a judge trial only, eliminating the right to a jury trial. Finally, decriminalization reduces "crimes" to a civil matter similar to a small claims action, and a disposition may be accomplished without City Attorney involvement. Ordinance No. 1360 defines Municipal Infractions and prescribes enforcement procedures and penalties. Ordinance No. 1361 alters the Penalty language of §1-9, Kalispell City Code and provides that a offense not designated as an "infraction" will be prosecuted as a crime. Once Ordinance Nos. 1360 and 1361 are passed, this office will revise a series of City Ordinances designating violations of those Ordinances as "infractions". Kalispell is the first City in the State, that we know of, to utilize the legislation. It is anticipated that such a conversion will impact Municipal Court efficiency and reduce workload in the City Attorney's Office. The Parking Commission does not oppose the reclassification. However, this office recommends that the filing fee for civil infractions be waived for at least parking violations in order to reduce the fiscal impact on the Parking Commission. A motion and vote adopting Ordinance No. 1360 and Ordinance No. 1361 is in order. ALR 2d 595. Water system --right to compel municipality to extend its water system. 48 ALR 2d 1222. Lease --granting or taking of lease by municipality as within authorization of purchase or acquisition thereof. 11 ALR 2d 168. Validity, under federal constitution, of so-called "head shop" ordinances or statutes, prohibiting manufacture and sale of drug use related paraphernalia. 69 ALR Fed. 15. 7-1-4150. Municipal infractions -- civil offense. (1) A municipal infraction is a civil offense punishable by a civil penalty of not more than $300 for each violation or if the infraction is a repeat offense, a civil penalty not to exceed $500 for each repeat violation. (2) A municipality may by ordinance provide that a violation of an ordinance is a municipal infraction. (3) A municipality may not provide that a violation of an ordinance is a municipal infraction if the violation is a criminal offense under state law. (4) An officer who is authorized by a municipality to enforce a municipal code or regulation may issue a civil citation to a person who commits a municipal infraction. The citation may be served by personal service, by certified mail addressed to the defendant at the defendant's last known mailing address, return receipt requested, or by publication, as provided in Rule 4D(5), M.R.Civ.P. A copy of the citation must be retained by the issuing officer and one copy must be sent to the clerk of the municipal or city court. The citation must serve as notification that a municipal infraction has been committed and must contain the following information: (a) the name and address of the defendant; (b) the name or description of the infraction attested to by the officer issuing the citation; (c) the location and time of the infraction; (d) the amount of civil penalty to be assessed or the alternate relief sought, or both; (e) the manner, location, and time in which the penalty may be paid; (f) the time and place of court appearance; and (g) the penalty for failure to appear in court. History: En. Sec. 2, Ch. 249, L. 1999. Compiler's Comments: Effective Date: This section is effective October 1, 1999. 7-1-4151. Municipal infractions -- proceedings. (1) In municipal infraction proceedings: (a) the matter must be tried before a municipal court judge or city court judge in the same manner as a small claim if the total amount of civil penalties does not exceed $3,000. The matter may only be tried before a judge in district court if the total amount of civil penalties assessed exceeds $3,000. (b) the city has the burden of proof that the municipal infraction occurred and that the defendant committed the infraction. The proof must be by clear and convincing evidence. (c) the court shall ensure that the defendant has received a copy of the charges and that the defendant understands the charges. The defendant may question all witnesses who appear for the municipality and produce evidence or witnesses on the defendant's behalf. (d) the defendant may be represented by counsel of the defendant's own choosing and at the defendant's own expense; (e) the defendant may answer by admitting or denying the infraction; (f) if a municipal infraction is proven, the court shall enter a judgment against the defendant. If the infraction is not proven, the court shall dismiss the charges. Each day that a violation occurs or is permitted to exist by the defendant constitutes a separate infraction. (2) All penalties or forfeitures collected by the court for municipal infractions must be remitted to the municipality in the same manner as fines and forfeitures collected for criminal offenses. If the person named in the citation is served as provided in 7-1-4150 and fails without good cause to appear in response to the civil citation, judgment must be entered against the person. (3) A person against whom judgment is entered shall pay court costs and fees as in small claims court under Title 25, chapter 35. If the action is dismissed by the court, the municipality is liable for the court costs and court fees. (4) Seeking a civil penalty as authorized in this section does not preclude a municipality from seeking alternative relief from the court in the same action. (5) When judgment has been entered against a defendant, the court may do any of the following: (a) impose a civil penalty by entry of a judgment against the defendant; (b) direct that payment of the civil penalty be suspended or deferred under conditions imposed by the court; (c) grant appropriate alternative relief ordering the defendant to abate or cease the violation; (d) authorize the municipality to abate or correct the violation; (e) order that the municipality's costs for abatement or correction of the violation be entered as a judgment against the defendant or assessed against the property where the violation occurred, or both. (6) If a defendant willfully violates the terms of an order imposed by the court, the failure is contempt. History: En. Sec. 3, Ch. 249, L. 1999. Compiler's Comments: Effective Date: This section is effective October 1, 1999. 7-1-4152. Municipal infractions --jurisdiction --appeal. (1) A municipal court judge or city court judge has jurisdiction to assess or enter judgment for costs of abatement or correction in any amount not to exceed the jurisdictional amount for a money judgment in a civil action pursuant to 3-11-103. If the municipality seeks abatement or correction costs in excess of that amount, the matter must be referred to the district court for hearing and entry of an appropriate order. The procedure for hearing in the district court shall be the same procedure as that for a small claims appealed under 25-35-803. (2) The defendant or the municipality may file a motion for a new trial or may appeal the decision to district court. A factual determination made by the trial court, supported by substantial evidence as shown in the record, is binding for purposes of appeal relating to the violation at issue, but is not admissible or binding as to any future violations for the same or similar ordinance provision by the same defendant. (3) Except for willful or wanton misconduct on the part of the municipality, the issuance of a civil citation for a municipal infraction or the ensuing court proceedings do not provide an action for false arrest, false imprisonment, or malicious prosecution. (4) An action brought pursuant to this section for a municipal infraction that is an environmental violation does not preclude, and is in addition to, any other enforcement action that may be brought under state law. History: En. Sec. 4, Ch. 249, L. 1999. Compiler's Comments: Effective Date: This section is effective October 1, 1999. ORDINANCE NO. 1360 AN ORDINANCE AUTHORIZING THE CLASSIFICATION OF CITY OFFENSES AS MUNICIPAL INFRACTIONS, PRESCRIBING ENFORCEMENT PROCEDURES AND PENALTIES, ALLOWING FOR APPEALS, AND ESTABLISHING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA, AS FOLLOWS: SECTION I. ARTICLE II. MUNICIPAL INFRACTIONS 1-12. Definitions. A. "MUNICIPAL INFRACTION": Any violation of the Kalispell City Code, as amended, which has been specifically declared to be a Municipal Infraction under provisions of the Kalispell City Code. B. "OFFICER": Any employee or official authorized to enforce provisions of the Kalispell City Code, as amended. C. "REPEAT VIOLATION": A recurring violation of the same section of the Kalispell City Code. Each day that a violation occurs or is permitted to exist constitutes a separate and distinct infraction. 1-13. Municipal Infractions. Penalties. A. A municipal infraction is a civil offense and for a proven violation, a civil penalty may be imposed. B. For a first violation, a civil penalty of not more than three hundred dollars ($300.00) shall be imposed. C. For each repeat violation, a civil penalty not to exceed five hundred dollars ($500.00) shall be imposed. D. Seeking a civil penalty as authorized in this Article does not preclude the City from seeking alternative relief from the court in the same action. 1-14. Civil Citations. Service and Requirements. A. Any officer who is authorized by the City to enforce a municipal code or regulation may issue a civil citation to a person who commits a municipal infraction. B. The citation may be served on the alleged violator by any one of the following methods: 1. Personal Service; or, 2. By certified mail addressed to the defendant at the defendant's last known mailing address, return receipt requested; or, 3. By publication, in the manner described in Rule 4D(5) of the Montana Rules of Civil Procedure. C. A copy of the citation must be retained by the issuing officer and one copy be sent to or filed with the clerk of the Kalispell Municipal Court. D. The citation shall serve as notification that a municipal infraction has been committed and shall contain the following information: 1. The name and address of the defendant; 2. The name or description of the infraction attested to by the officer issuing the citation; 3. The location and time of the infraction; 4. The amount of the civil penalty to be assessed or the alternative relief sought, or both; 5. The manner, location and time in which the penalty may be paid; 6. The time and place of court appearance; and, 7. The penalty for failure to appear in court. 1-15. Court Proceedings. A. If the total amount of civil penalties does not exceed three thousand dollars ($3,000.00), the matter shall be tried before the Municipal Court Judge in the same manner as a small claim. If the total amount of civil penalties assessed exceeds three thousand dollars ($3,000.00), the matter must be tried before a District Court Judge. B. The City has the burden of proof that the municipal infraction occurred and that the defendant committed the infraction. The proof must be by clear and convincing evidence. C. The court shall ensure that the defendant has received a copy of the charges and that the defendant understands the charges. The defendant may question all witnesses who appear for the municipality and produce evidence or witnesses on the defendant's behalf. D. The defendant may be represented by counsel of the defendant's own choosing and at the defendant's own expense. E. The defendant may answer by admitting or denying the infraction. F. If a municipal infraction is proven, the court shall enter judgment against the defendant. If the infraction is not proven, the court shall dismiss the charges. G. If the person named in the citation is shown to have been served with the civil citation in the proper manner and, without good cause, fails to appear in response to the citation, judgment shall be entered against the person by the court. 1-16. Disposition Following Judgment. A. A person against whom judgment is entered shall pay court costs and fees as in small claims court under Title 25, Chapter 35 of the Montana Code Annotated in addition to the penalties imposed by the Court. If the action is dismissed by the court, the City is liable for the court costs and court fees. B. All penalties and forfeitures collected by the court for municipal infractions shall be remitted to the City in the same manner as fines and forfeitures collected for criminal offenses. C. In addition to the imposition of civil penalties authorized by law against a defendant, the City may seek alternative relief from the court in the same action. Alternative relief may consist of any of the following: 1. Direct that payment of the civil penalty be suspended or deferred under conditions imposed by the court; or, 2. Order the defendant to abate or cease the violation; or, 3. Authorize the City to abate or correct the violation; or, 4. Order the City's costs for abatement or correction of the violation be entered as a judgment against the defendant or assessed against the property where the violation occurred, or both. (a) The amount of costs imposed by Municipal Court shall not exceed the jurisdictional amount for a money judgment in a civil action under section 3-11-103, Montana Code Annotated. (b) If the City seeks abatement or correction costs in excess of the jurisdictional limit provided in paragraph 4(a) above, the matter shall be referred to District Court for hearing and entry of an appropriate order. The procedure for hearing in the District Court shall be the same procedure as that for a small claims appealed under section 25-35- 803, Montana Code Annotated. D. A defendant who willfully violates the terms of an order imposed by the court is guilty of contempt. 1-17. Appeals Following Judgment. A. The defendant or the City may file a motion for a new trial or may appeal the decision to District Court. B. A factual determination may by the trial court, supported by substantial evidence as shown on the record, is binding for purposes of appeal relating to the violation at issue, but is not admissible or binding as to any future violations for the same or similar ordinance provision by the same defendant. 1-18. Issuance of Civil Citations Not Grounds for Further Legal Action. Except for willful or wanton misconduct on the part of the City, the issuance of a civil citation for a municipal infraction or the ensuing court proceedings do not provide an action for false arrest, false imprisonment, or malicious prosecution. 1-19. Environmental Actions. An action brought by the City for an environmental violation does not preclude, and is in addition to, any other enforcement action that may be brought under state law. SECTION II. This Ordinance shall be effective thirty (30) days from and after the date of its final passage and approval. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, THIS DAY OF , 2000. Wm. E. Boharski Mayor Attest: Theresa White City Clerk