HomeMy WebLinkAbout09774ORDINANCE NO. 9774
AN ORDINANCE AMENDING SECTION 11-1-210 OF
CHAPTER 1 OF TITLE XI OF THE PUEBLO MUNICIPAL
CODE TO INCLUDE NEW DEFINITIONS AND
PROCEDURES FOR ADDRESSING NUISANCE VEHICLES
WHEREAS, crimes involving vehicles pose a danger to the life and property of
the residents of Pueblo; and
WHEREAS, the vehicles involved in these crimes are a nuisance and should be
abated; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate
matter being deleted, underscoring indicates new matter being added)
SECTION 1.
Section 11-1-210 of the Pueblo Municipal Code shall be amended as follows:
Sec. 11-1-210. - Vehicles; nuisance; abatement; violation.
(a) Declaration. Crimes involving vehicles\[Drive-by crimes and speed
contests\] render City residents, visitors, businesses and neighborhoods insecure in life
and in the use of property. Such crimes and the instrumentalities used to commit such
crimes constitute a continuing threat to the comfort, safety, and health of the public. It is
expressly declared that the use of vehicles for the commission of nuisance vehicle
offenses\[drive-by crimes and speed contests\] constitutes a public nuisance within the
City that should be eliminated or hindered, and thereby abated, by the means set forth in
this Section.
(b) Definitions. As used in this Section:
(1) Chief of Police means the Chief of the Pueblo Police Department or
his or her authorized representative.
(2) \[Drive-by crime shall have the meaning as set forth in Section 16-
13-301(2.2), C.R.S. (2008), as amended.
(3)\] Innocent owner means a record owner who neither participated in
the commission of a nuisance vehicle offense\[drive-by crime or speed contest\],
nor knew or reasonably should have known that the vehicle would be used in the
commission of a nuisance vehicle offense\[drive-by crime or speed contest\].
\[(4)\](3) Nuisance vehicle means a vehicle which is used within the City
to commit, conduct, promote, facilitate, or aid in the commission of or flight
from a nuisance vehicle offense.\[for concealment or transportation in the
commission of a drive-by crime, or a speed contest; provided, however, that
n\]Nuisance vehicle shall not include a vehicle with respect to which the record
owner is an innocent owner.
(4) Nuisance Vehicle Offense means any of the following:
a. a drive-by-crime as defined in Section 16-13-301(2.2),
C.R.S. (2020) as amended;
b. Vehicular Eluding under 18-9-116.5, or eluding or
attempting to elude a peace officer under section 42-4-1413, C.R.S.
(2020) as amended.
c. Speed contest as defined in 42-4-1105, C.R.S. (2020) as
amended;
(5) Record owner means the owner with respect to a vehicle as identified
in the records of application and registration maintained by the Colorado
Department of Revenue or, if the vehicle is registered outside the State, the
records of application and registration maintained by the state in which the vehicle
is registered. If such record owner establishes that the vehicle was transferred to
a bona fide transferee before the occurrence of the related nuisance vehicle
offense\[drive-by crime or speed contest\], the record owner shall mean and
include said transferee.
(6) \[Speed contest means the operation of one (1) or more vehicles to
conduct a race or a time trial, including but not limited to rapid acceleration,
exceeding reasonable and prudent speeds for streets, highways and existing traffic
conditions, vying for position, rapid swerving or weaving in and out of traffic, or
performing one (1) or more lane changes in an attempt to gain advantage over one
(1) or more of the other race participants.
(7)\] Vehicle means any self-propelled device which is capable of moving
itself from place to place upon wheels, which is designed primarily for travel on the
public highways and which is generally and commonly used to transport persons
and property over the public highways.
(c) Failure to charge. A vehicle nuisance offense does not require that the
individual responsible for the offense be charged, prosecuted, or convicted of any
violation of federal law, state law, or city code.
(d) Abatement.
(1) If the Chief of Police finds and determines upon probable cause that
a vehicle is a nuisance vehicle, the Chief of Police \[shall\]may serve written notice
and order upon the record owner, which notice and order shall provide:
\[(1)\]a. A description of the vehicle, including make, model and
vehicle identification number.
\[(2)\]b. A statement that the vehicle has been used in the
commission of a nuisance vehicle offense\[drive by crime or speed
contest\] and identification of the approximate date and location of said
offense\[crime\].
\[(3)\]c. Notice that the vehicle has been determined to be a
nuisance vehicle pursuant to this Section.
\[(4)\]d. An order prohibiting the record owner from using or
operating or permitting the use or operation of the nuisance vehicle for an
abatement period \[of\]not exceeding six (6) months other than such use
or operation which is necessary to deliver possession of such vehicle to the
Chief of Police.
\[(5)\]e. An order directing the record owner to deliver immediate
possession of the vehicle to the Chief of Police, unless such vehicle has
otherwise been lawfully seized.
\[(6)\]f. That violation of a final notice and order is a criminal offense
subject to fine and/or jail sentence.
\[(7)\]g. That the owner may appeal such notice and order as
provided in this Section.
(2) A courtesy copy of said notice and order shall be mailed by first-
class mail, postage prepaid, to all lienholders of record.
\[(d)\](3) Appeals\[;\] and stay\[; release of vehicle\]of final notice and
order.
\[(1)\]a. The record owner of a nuisance vehicle may appeal a
notice and order by filing written notice of such appeal with the Municipal
Court Clerk within fourteen (14)\[ten (10)\] days after service of the notice
and order.
\[(2)\]b. The timely filing of an appeal shall stay the notice and order
until such time as a hearing may be held. Any notice and order which is not
timely appealed shall be a final notice and order.
\[(3) Any vehicle which is the subject matter of a final notice and order
shall not be released to the record owner except upon the following conditions:
a. Compliance with the notice and order and expiration of the
six-month period set forth in the notice and order; and
b. Payment of all storage fees incurred by the City with respect
to the vehicle. Such fees shall be commensurate with, but shall not exceed,
the maximum rate that a towing carrier may charge for a nonconsensual
tow of a motor vehicle as set forth in Rule 6511, 4 Code of Colorado
Regulations 723-6 (2008), as amended.
c. Any vehicle which remains unclaimed after the six-month
period set forth in the notice and order may be sold by the City pursuant to
the procedure set forth in Paragraph 15-1-8(a)(25) of this Code, for sale of
abandoned and impounded vehicles. All unpaid storage fees owed
pursuant to Subparagraph b. above shall constitute a lien upon the vehicle
and superior to all other liens of any nature.\]
\[(e)\]c. Hearing on appeal. The hearing officer, with respect to
any appeal filed pursuant this Section, shall be the Municipal Court Judge.
Such hearings shall be conducted as quasi-judicial hearings in accordance
with the provisions of Title I of this Code.
\[(1)\]1. Time and notice of hearing. A hearing shall be
set within fourteen (14)\[ten (10) business\] days of filing the notice
of appeal. Notice of the hearing date shall be served personally or by
mailing the same by first-class mail, postage prepaid, to the record
owner at his or her address set forth in the appeal.
\[(2)\]2. Burden of proof. The City shall have the burden
of proof by a preponderance of the evidence with respect to
establishing that the vehicle is a nuisance vehicle.
\[(3)\]3. Decision on appeal. If the hearing officer
determines that the vehicle is not a nuisance vehicle, the hearing
officer shall reject and rescind the notice and order. If the hearing
officer determines that the vehicle is a nuisance vehicle, the hearing
officer shall sustain the notice and order, this shall be a final order
of the court. \[and, f\]For the purposes of this Section and unless
otherwise stayed by the District Court, the notice and order shall be
final.
(e) Temporary restraining order. If the Chief of Police determines that a
vehicle must be seized without notice to the registered owner in order to preserve
the comfort, safety, and health of the public or of police officers; the Chief of Police
may petition the Municipal Court for issuance of a temporary protection order
under this section.
(1) If probable cause is established to believe that a vehicle is a
nuisance vehicle under this section, by means of a complaint supported by
an affidavit or testimony evidence accepted at a hearing, the Municipal Court
shall issue a temporary restraining order directing the police department to
seize the nuisance vehicle without notice to the registered owner. Such
temporary restraining order shall:
a. direct a peace officer to seize and impound the nuisance
vehicle for an abatement period not to exceed six (6) months;
b. restrain and enjoin all persons from selling, transferring,
encumbering, damaging, destroying, or using as security for a bond
the nuisance vehicle;
c. order the police department to provide a copy of the
restraining order through personal service to the registered owner or
through certified mailing to the last known address of the registered
owner; and
d. issue any other orders that are reasonably necessary to
take the vehicle into the court’s constructive custody, and to provide
access to and safeguard that vehicle.
(2) Any person with an ownership interest adversely affected by a
temporary restraining order issued pursuant to this section may file a motion
to modify or vacate the temporary restraining order. by filing written notice
with the Municipal Court within fourteen (14) days after the issuance of the
order or the seizure of the vehicle, whichever is later.
a. The Municipal Court shall be the hearing officer on all
motions to vacate or modify a temporary restraining order. Upon
receipt of a motion to modify or vacate a temporary restraining order
the Municipal Court shall schedule a hearing on the merits of the
motion within fourteen (14) days.
b. Any motion to modify or vacate a temporary restraining
order issued under this section shall state specifically the factual and
legal grounds upon which it is based, only those grounds may be
considered at the hearing.
c. Burden of proof. At the hearing the City shall have the
burden of proving by a preponderance of the evidence that the vehicle
is a nuisance vehicle.
d. The Municipal Court shall not modify or vacate a
temporary restraining order unless it finds that there is no probable
cause to believe that the vehicle is a nuisance vehicle, or it is
established that the registered owner is an innocent owner as defined
in this section.
e. The provisions of a temporary restraining order, issued
under this section, shall remain in effect unless amended by the
Municipal Court.
f. Any order denying or granting a motion to vacate or
modify a temporary restraining order issued under this section shall
be a final order of the hearing officer.
(f) Any vehicle which is the subject matter of a final notice and order or a
temporary restraining order shall not be released to the record owner except upon
the following conditions:
(1) Compliance with the notice and order and expiration of the
abatement period set forth in the notice and order; and
(2) Payment of all storage fees incurred by the City with respect to
the vehicle. Such fees shall be commensurate with, but shall not exceed, the
maximum rate that a towing carrier may charge for a nonconsensual tow of
a motor vehicle as set forth in Rule 6511, 4 Code of Colorado Regulations
723-6 (2020), as amended.
(3) Any vehicle which remains unclaimed after the abatement
period set forth in the notice and order, or the expiration of the temporary
restraining order, may be sold by the City pursuant to the procedure set forth
in Paragraph 15-1-8(a)(25) of this Code, for sale of abandoned and
impounded vehicles. All unpaid storage fees owed pursuant to
Subparagraph (2) above shall constitute a lien upon the vehicle and superior
to all other liens of any nature.
\[(f)\](g) Judicial review. Any final\[The\] decision of the hearing officer may
be appealed to the District Court pursuant to Section 1-7-14 of this Code. The hearing
officer shall not stay the decision pending any such appeal.
\[(g)\](h) Violation. It shall be a Class 1 municipal offense for any person to:
(1) fail to comply with a, properly served, final notice and order; or
(2) fail to comply with any provision of a restraining order issued
under this section.
\[(h)\](i) Limitations.
(1) No notice and order nor any temporary restraining order shall be
served upon a record owner who does not reside within the City, unless such
record owner participated in the nuisance vehicle offense\[drive-by crime\].
(2) This Section is not intended to authorize any act expressly prohibited
by state law or to forbid any conduct expressly authorized by state law. The
provisions of this Article shall be construed to avoid any such direct and express
conflict.
SECTION 2.
The officers and staff of the City are authorized and directed to perform any and
all acts consistent with this Ordinance to effectuate the policies and procedures described
herein.
SECTION 3.
This Ordinance shall become effective on the date of final action by the Mayor and
City Council.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on August 10, 2020 .
Final adoption of Ordinance by City Council on August 24, 2020 .
President of City Council
Action by the Mayor:
☒ Approved on August 28, 2020 .
□ Disapproved on based on the following objections:
_
Mayor
Action by City Council After Disapproval by the Mayor:
□ Council did not act to override the Mayor's veto.
□ Ordinance re-adopted on a vote of , on
□ Council action on _______ failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-7
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: August 10, 2020
TO: President Dennis E. Flores and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Brenda Armijo, City Clerk
FROM: Kyle Aber, Assistant City Attorney
SUBJECT: AN ORDINANCE AMENDING SECTION 11-1-210 OF CHAPTER 1 OF TITLE XI
OF THE PUEBLO MUNICIPAL CODE TO INCLUDE NEW DEFINITIONS AND
PROCEDURES FOR ADDRESSING NUISANCE VEHICLES
SUMMARY:
Attached is an ordinance which expands the definition of nuisance vehicle to include vehicles that
have been used in the commission of vehicular eluding. This ordinance also adopts new
procedures for declaring and seizing a nuisance vehicle in emergency situations.
PREVIOUS COUNCIL ACTION:
The original nuisance vehicle ordinance only applied to drive-by crimes, in 2015 the City Council
expanded that ordinance to include vehicles used for speed contests in the definition of nuisance
vehicle.
BACKGROUND:
The current nuisance vehicle ordinance has been successful in limiting drive-by crimes and speed
contests in the City. The Pueblo Police Department has identified vehicular eluding as an
additional offense involving vehicles that render City residents, visitors, businesses, and
neighborhoods insecure in life and in the use of property. This ordinance would allow the City to
declare vehicles used in the commission of vehicular eluding as nuisance vehicles and seize
those vehicles temporarily. The ultimate goal of the Police Department is to identify vehicles that
are used in a way that poses a danger to the public and to seize those vehicles temporarily. The
Police Department believes that these temporary seizures will act as a deterrent to commission
of those offenses and as a way to interrupt continuing unlawful activity.
Nuisance vehicles are easily moved and concealed from police officers and in certain
circumstances it is not practical to inform the registered owner their vehicle has been declared a
nuisance and then wait for them to turn the vehicle in. This ordinance amends the nuisance
vehicle statute to allow police to seize vehicles when it is impractical or dangerous to give prior
notice to the owner of the vehicle. Such seizures require the Municipal Court to issue a temporary
restraining order and can be challenged by the registered owner of the vehicle after the seizure.
FINANCIAL IMPLICATIONS:
The cost of impounding nuisance vehicles is assessed on the registered owner of the vehicle.
This should not require any additional funding.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this ordinance is not passed the nuisance vehicle ordinance will continue to only apply to drive-
by crimes and speed contests and the process for seizing a nuisance vehicle will not be expanded
to allow the Municipal Court to issue temporary restraining orders on the owners of nuisance
vehicles.
RECOMMENDATION:
Approve the Ordinance.
Attachments: Proposed Ordinance