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06. Ordinance 1430 - Municipal Infractions - 2nd ReadingTO: FROM: SUBJECT: City of Kalispell Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758 Mayor Pamela B. Kennedy and Kalispell City Council Charles Harball, City Attorney Chris Kukulski, City Manager Municipal Infractions; Decriminalization of Parking Offenses; Waiver of Municipal Court Fees MEETING DATE: August 5, 2002 BACKGROUND: Currently, municipal parking offenses are classified as criminal offenses. This classification carries with it the right of the alleged violator to be personally served with a summons, along with the right to a jury trial. The 1999 state legislature passed a bill which permits cities to decriminalize certain offenses by classifying them as civil infractions. M.C.A. § 7-1-4124. The procedures for processing municipal infractions are found at M. C.A. § 7-1-4150 through § 4152, which have been fully incorporated into the proposed ordinances. The primary benefits to be realized by decriminalizing parking offenses are improvement of public approval to municipal parking regulations, increased efficiency of collections, a reduced workload on the City Attorney's Office and a reduced court docket. As a civil matter similar to a small claims action, summons could be mailed and the matter could be handled without attorney involvement. The contested case would be heard by the municipal judge and citizens would no longer be needlessly inconvenienced by being required to appear in municipal court as jurors on a $10 parking ticket. In order to lessen the cost impact on the Parking Commission, it would be recommended that the municipal court filing fees be waived for parking infractions. RECOMMENDATION: Ordinances 1430, 1431 and 1432 pass on second reading. FISCAL EFFECTS: Probably minimal. Currently, the City does not receive costs from parking ticket trials. The primary savings realized would be in court time and associated costs. Respectfully submitted, Charles Hdiplll, City Attorney Clris Kukulski., City Manager ORDINANCE NO. 1430 AN ORDINANCE AUTHORIZING THE CLASSIFICATION OF CERTAIN CITY OFFENSES AS MUNICIPAL INFRACTIONS, PRESCRIBING ENFORCEMENT PROCEDURES AND PENALTIES, ALLOWING FOR APPEALS, AUTHORIZING THE CITY ATTORNEY TO CODIFY §§ 1-11, 1-12, 1-13, 1-14, 1-15, 1-16, 1-17, 1-18, AND ESTABLISHING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA, AS FOLLOWS: SECTION I. MUNICIPAL INFRACTIONS 1-11. 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. 1-12. 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. 1-13. 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 41)(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; The location and time of the infraction; 4. The amount of the civil penalty to be assessed or the alternative relief sought, or both; 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. 1-14. 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. 1-15. 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 moneyjudgment 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. 1-16. 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. 1-17. 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. 1-18. 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 lI. 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 5TH DAY OF AUGUST, 2002. Pamela B. Kennedy Mayor ATTEST: Theresa White City Clerk