HomeMy WebLinkAbout07867ORDINANCE NO. 7867
AN ORDINANCE AMENDING CHAPTER 1 OF TITLE XI DECLARING VEHICLES USED IN THE
COMMISSION OF DRIVE -BY CRIME TO CONSTITUTE A NUISANCE, PROVIDING FOR
ABATEMENT THEREOF AND PENALTIES FOR THE VIOLATION OF ITS PROVISIONS
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that
SECTION 1.
Chapter 1 of Title XI is amended by the addition of a new Section to read as follows:
Sec. 11 -1 -210. Vehicles Used in Drive -by Crimes; Nuisance; Abatement; Violation.
(a) Declaration. Drive -by crimes 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 drive -by crimes constitute a public nuisance within the City that should be
eliminated or hindered. and therebv abated. by the means set forth in this Section.
Definitions. As used in this Section
Chief of Police means the Chief of the Pueblo Police
Department or his authorized representative.
Drive -by crime shall have the same meaning as set forth in 116-
13-301(2.2), C. R.S. (2008), as amended.
Innocent owner means a record owner who neither participated in
the commission of a drive -by crime, nor knew or reasonably should have known that
the vehicle would be used in the commission of a drive -bv crime.
Nuisance vehicle means a vehicle which is used for concealment or
transportation in the commission of a drive -by crime within the City, provided
however, nuisance vehicle shall not include a vehicle with respect to which the
record owner is an innocent owner.
Record owner means the owner with respect to a vehicle as identified
in the records of application and registration maintained by the Department of
Revenue, State of Colorado, or if the vehicle is registered outside the State of
Colorado, 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 drive-
crime. the record owner shall mean and include said transferee.
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) Abatement. If the Chief of Police finds and determines upon probable cause
that a vehicle is a nuisance vehicle, the Chief of Police shall serve written notice and order
upon the record owner. which notice and order shall provide:
A description of the vehicle including make, model and vehicle
identification number.
A statement that the vehicle has been used in the commission of a
drive -by crime and identification of the approximate date and location of said crime.
Notice that the vehicle has been determined to be a nuisance
vehicle pursuant to this Section.
Order prohibiting the record owner from using or operating or
permitting the use or operation of the nuisance vehicle for a period of six (6)
months other than such use or operation which is necessary to deliver possession
of such vehicle to the Chief of Police.
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.
That violation of a final notice and order is a criminal offense
subiect to fine and /or iail sentence.
M That the owner may appeal such notice and order as provided in this
Section.
A courtesy copy of said notice and order shall be mailed by first class mail,
postage prepaid, to all lienholders of record.
Appeals; Stay; Release of Vehicle.
The record owner of a nuisance vehicle may appeal a notice
and order by filing written notice of such appeal with the Clerk of the Pueblo
Municipal Court within ten (10) days after service of the notice and order.
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.
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 non - consensual
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 City pursuant to the
procedure set forth in Section 15- 1- 8(a)(25), P.M.C., for sale of abandoned
and impounded vehicles. All unpaid storage fees owed pursuant to
subsection b shall constitute a lien upon the vehicle prior and superior to all
other liens of anv nature.
(e) 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.
Time and Notice of Hearing. A hearing shall be set within ten
business days of filing the notice of appeal. Notice of the hearing date shall be
served personally or by mailing same by first class mail, postage prepaid, to the
record owner at his or her address set forth in the appeal.
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.
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, and for the purposes
of this Section and unless otherwise stayed by the District Court, the notice and
order shall be final.
Judicial Review. 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.
& Violation. It shall be unlawful and a municipal offense for any person to fail
to comply with a properly served and final notice and order. Any person convicted of
violating this Section shall be punished by a fine not to exceed three hundred dollars
($300.00) or by imprisonment not to exceed ninety (90) days, or by both such fine and
imprisonment
Limitations.
No notice and order shall be served upon a record owner who
does not reside within the City unless such record owner participated in the
drive -bv crime.
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.
In the event any section, subsection, clause, phrase or portion of this Ordinance is for any
reason held illegal, invalid or unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision, and such holding shall not affect
the validity of the remainder of this Ordinance. It is the legislative intent of the City Council that this
Ordinance would have been adopted if such illegal provision had not been included or any illegal
application had not been made.
SECTION 3.
This Ordinance shall become effective thirty (30) days after final passage and approval.
INTRODUCED August 11, 2008
BY Vera Ortegon
Councilperson
APPROVE �.
i i l� l F'erf runui
A S ECG Iay,
PASSED AND APPROVED: Auaust 25. 2008
0 �';�> 7967
D D D
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Background Paper for Proposed
ORDINANCE
AGENDA ITEM # 30
DATE: August 11, 2008
DEPARTMENT: Law Department
TITLE
AN ORDINANCE AMENDING CHAPTER 1 OF TITLE XI DECLARING VEHICLES USED
IN THE COMMISSION OF DRIVE -BY CRIME TO CONSTITUTE A NUISANCE,
PROVIDING FOR ABATEMENT THEREOF AND PENALTIES FOR THE VIOLATION OF
ITS PROVISIONS
ISSUE
Should City Council pass the proposed Ordinance declaring vehicles used for concealment
or transportation in the commission of a drive -by crime to constitute a nuisance and
providing for a procedure to abate such nuisance and enforce such abatement.
RECOMMENDATION
None
BACKGROUND
This Ordinance was prepared on behalf of and pursuant to the request of Council Members
Ray Aguilera and Larry Atencio to address a growing concern relating to the negative
impacts that drive -by crimes have upon neighborhoods and the community at large. Under
the proposed Ordinance, drive -by crimes include any of the following crimes as defined by
state statute which is committed while utilizing a vehicle for means of concealment or
transportation: first degree assault, second degree assault, felony menacing or illegal
discharge of firearm.
Under its terms, the record owner of a nuisance vehicle shall be prohibited from operating
or permitting the operation of such vehicle for a period of six months and will be required to
deliver such vehicle to the Chief of Police for said period. An innocent owner, i.e. an owner
who did not participate in the drive -by crime or did not know or reasonably should of known
the vehicle would be used in the commission of a drive -by crime, will not be subject to the
prohibition under the Ordinance.
No such vehicle shall be released to the record owner until the six month period has
passed and the storage fees incurred by the City have been paid.
FINANCIAL IMPACT
No significant financial impact is anticipated.