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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/01/2005 - FIRST READING OF ORDINANCE NO. 032, 2005, ADDING R ITEM NUMBER: 27 AGENDA ITEM SUMMARY DATE: March 1, 2005 FORT COLLINS CITY COUNCIL STAFF: Steve Roy SUBJECT First Reading of Ordinance No. 032, 2005, Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General Penalty for City Code Violations and Traffic Infractions. RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. EXECUTIVE SUMMARY This Ordinance clarifies when restitution can be ordered as a condition of sentencing for violations of the Municipal Code. BACKGROUND This proposed ordinance will clarify when the Municipal Judge can and should order restitution as part of sentencing when persons are convicted of misdemeanor Code violations and traffic infractions. Currently,there are no restitution guidelines, and defendants and victims should know when restitution can reasonably be expected through Municipal Court. Given the staffing requirements for effective enforcement of the payment of restitution, the City is unable to efficiently enforce restitution in traffic matters. The state criminal justice system has a more effective method of requiring restitution and enforcing payment of the restitution, and is therefore a more appropriate forum for collecting restitution in those kinds of cases. As to non- traffic misdemeanor or Code offenses, staff recommends that restitution be ordered for the victim, but only as to direct, out-of-pocket costs. The City itself can incur substantial costs as a result of violations of the Code and staff believes individuals found to be violating the Code should be responsible for any extraordinary monetary costs incurred as a result of such violations. This is especially true where special expertise is required to deal with a violation, or when extraordinary or non-traditional methods of enforcement are required. ORDINANCE NO, 032, 2005 OF THE COUNCIL OF THE CITY OF FORT COLLINS ADDING RESTITUTION REQUIREMENTS TO SECTION 1 - 15 OF THE CITY CODE RELATING TO THE GENERAL PENALTY FOR CITY CODE VIOLATIONS AND TRAFFIC INFRACTIONS WHEREAS , in October, 2004, City staffbegan reviewing the City Code regarding restitution in misdemeanor and traffic matters to determine if any changes to the Code were needed; and WHEREAS , in the course of its review, staff discussed the purposes and functions of restitution as applied to misdemeanor and traffic matters and concluded that the City Code lacked specificity as to when the Municipal Judge should impose restitution and in what amounts ; and WHEREAS, staff recommends that the Code be amended to state when and how much restitution should be ordered in cases heard by the Municipal Judge ; and WHEREAS , the City Council believes that it is in the best interests of the City to amend the Code to clarify when restitution will be ordered in Municipal Court. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Section 1 - 15 of the Code of the City of Fort Collins is hereby amended as follows : Sec. 145. General penalty and penalty for traffic infractions. (a) Except as to traffic infractions described in (b) below, any person who shall violate any provision of this Code, the Charter or any provision of any code or other regulation adopted by reference by this Code, by doing any act prohibited or declared to be unlawful thereby, or who shall engage in any business, occupation or activity for which a license or permit is required without having a valid license or permit therefor, or who shall fail to do any act required by any such provision, or who shall fail to do any act when such provision declares such failure to be unlawful or to be an offense or misdemeanor, shall be guilty of a misdemeanor and, upon conviction, shall be punished by the penalty specifically provided for such violation or, if none, then by a fine not exceeding one thousand dollars ($ 1000 .) or by imprisonment not exceeding one hundred eighty ( 180) days, or by both such fine and imprisonment, in addition to any costs which may be assessed. No person under the age of eighteen ( 18) years as of the date of the offense shall be subject to imprisonment except in the case of failure to comply with a lawful order of the court, including an order to pay a fine, and then only in the manner provided in Section 13 - 10- 113 , C .R. S . , and the Colorado Children's Code, Section 19- 1 - 101 et seq. , C .R. S . Each day upon which a violation continues shall constitute a separate misdemeanor offense unless some other specific time period is provided for any particular offense . (b) A violation of any provision of Chapter 28 , Vehicles and Traffic, in this Code or the Fort Collins Traffic Code, shall be deemed to be a traffic infraction if, at the time of the commission of the violation, its counterpart violation under the provisions of Article 4 in Title 42 of the Colorado Revised Statutes, if any, is designated by state law as being a traffic infraction. If no counterpart violation exists under state law, the violation shall be deemed to be a traffic infraction. All other violations under Chapter 28 of this Code or the Fort Collins Traffic Code shall be considered misdemeanors punishable as described in paragraph (a) of this Section. Any person against whom judgment is entered for a traffic infraction under this Code shall be subject to the penalty of a fine not exceeding one thousand dollars ($ 1 ,000 .) and shall not be subject to imprisonment on account of such judgment. (c) Except as provided in subsection (d) below, a law enforcement officer, code enforcement officer, the City Attorney or their designees may request that the Municipal Judge order restitution of direct out-of-pocket costs incurred by any victim of a misdemeanor. By way of illustration, such direct out-of-pocket costs may include, but need not be limited to, costs to repair or replace damaged property, medical insurance deductibles, or medical costs directly paid and un-reimbursed by any entity other than the victim or the victim's parent or guardian. (d) Restitution through Municipal Court shall not be available for victims of traffic infractions or traffic misdemeanors . (e) The city may seek restitution, and the Municipal Judge shall order such restitution, for costs incurred by the city or Poudre Fire Authority in enforcing the provisions of Chapter 4, Animals and Insects ; Chapter 17 , Miscellaneous Offenses ; and Chapter 20, Nuisances, but only if such enforcement required the use of an extraordinary number of personnel, highly trained personnel, sophisticated equipment, or non-traditional methods of enforcement. Such restitution shall be apportioned as deemed appropriate by the Municipal Judge, taking into consideration the behavior of the defendant(s), the amount and kind of expenses incurred by the city or Poudre Fire Authority, the number of participants involved in the criminal activity and such other circumstances as the Judge may consider relevant. Notwithstanding the foregoing, if the Code specifies restitution responsibility of the defendant for violations of a particular Code provision, that Code provision will control. Introduced and considered favorably on first reading and ordered published this 1 st day of March, A.D . 2005 , and to be presented for final passage on the 15th day of March, A.D . 2005 , Mayor ATTEST : City Clerk Passed and adopted on final reading this 15th day of March, A.D . 2005 . Mayor ATTEST : City Clerk