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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 D 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.