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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 12/19/2017 - SECOND READING OF ORDINANCE NO. 171, 2017, AMENDINAgenda Item 7 Item # 7 Page 1 AGENDA ITEM SUMMARY December 19, 2017 City Council STAFF Tyler Marr, Policy and Project Analyst Jody Hurst, Legal SUBJECT Second Reading of Ordinance No. 171, 2017, Amending Chapter 1 and Other Related Provisions of the Code of the City of Fort Collins to Create a Petty Offense Classification and Penalties for Petty Offense Violations. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on December 5, 2017, creates a petty offense category within the City Code and classifies a violation of the City's smoking ordinance as a petty offense. Some errors were discovered in the First Reading Agenda Item Summary and an amended version has been provided as part of the agenda materials. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. AMENDED First Reading Agenda Item Summary, December 5, 2017 (PDF) Agenda Item 10 Item # 10 Page 1 AGENDA ITEM SUMMARY December 5, 2017 City Council AMENDED FIRST READING AGENDA ITEM SUMMARY STAFF Tyler Marr, Policy and Project Analyst Jody Hurst, Legal SUBJECT First Reading of Ordinance No. 171, 2017, Amending Chapters 1 and 19Other Related Provisions of the Code of the City of Fort Collins to Create a Petty Offense Classification and Penalties for Petty Offense Violations. EXECUTIVE SUMMARY The purpose of this item is to create a petty offense category within the City Code and to classify a violation of the City's smoking ordinance as a petty offense. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Under current Code provisions, the City can either classify a code violation as a misdemeanor or as a civil infraction. Both provide benefits and are appropriate depending on the specific law being broken, as noted in the following points:  Misdemeanor offenses constitute a criminal violation of City Code. These offenses are currently punishable by a maximum fine of $2,830 and 180 days in jail. In cases where a person has a summons to appear in court and does not appear, If someone does not appear for their court date or pay their fine, the City can issue a warrant for that person’s arrest. These offenses are a part of an individual’s criminal record and can impact people’s ability to apply for and compete for jobs.  Civil infractions offer a way for the City to fine individuals not acting in accordance with less serious portions of the City Code deemed lesser offenses. These infractions are not criminal in nature, do not appear on a person’s criminal record, and are punishable by a maximum fine of $2,830, but does not impose any jail time. The City is unable to issue a warrant when an individual does not pay their fine, which poses some operational challenges of collecting fine dollars. During discussions related to the revisions of the downtown smoking ordinance, it was mentioned by several stakeholder groups that a violation of the smoking ordinance should not be criminal in naturea misdemeanor offense. Additionally, state law indicates that violations of state smoking law provisions shall be punishable by nothing less severe than a petty offense. Given potential conflict with state law and concerns about persons not complying with the smoking ordinance if it were a civil infraction, staff is recommending the creation of a petty offense category within City Code. This petty offense category would allow for the following to occur for individuals violating laws classified under this new category:  Petty offense would have a maximum fine of $500 and no jail time ATTACHMENT 1 Agenda Item 10 Item # 10 Page 2  These offenses would allow the City to issue a warrant for defendants who do not appear for court. if a fine was not collected through existing processes.  While a petty offense is still criminal in nature, it does not rise to the same level as a misdemeanor offense. Often, when people apply for jobs or colleges, they are asked whether they have committed any misdemeanor or felony crimes; in the case of a petty offense, that person could honestly answer “no” to that question, if asked. In addition, municipal court crimes, regardless of the classification, do not appear on typical background checks, unlike offenses in state court. There would be no lasting impact on an individual committing these crimes as they would not appear on a criminal record. Staff believes that the addition of this offense category is an important step in giving additional options when considering code changes. Upon initial adoption, if the Smoking Ordinance passes on second reading, it would be the only the smoking offense ordinance would be classified as a petty offense. Staff from the City Attorney’s Office, Code Compliance, and Police Services are in the process of researching other municipal code provisions that are currently civil infractions that may be better suited as petty offenses. Staff will bring forward these proposed changes if deemed necessary. CITY FINANCIAL IMPACTS Fine collection may vary slightly by changing the smoking ordinance from a misdemeanor to a petty offense. PUBLIC OUTREACH Staff presented these changes as a part of the outreach concerning potential revisions to the smoking ordinance. This included outreach to the Downtown Business Association, Larimer County Department of Health and Environment, and a public meeting held on November 30. Public reception was generally favorable to the creation of this petty offense category. -1- ORDINANCE NO. 171, 2017 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 1 AND OTHER RELATED PROVISIONS OF THE CODE OF THE CITY OF FORT COLLINS TO CREATE A PETTY OFFENSE CLASSIFICATION AND PENALTIES FOR PETTY OFFENSE VIOLATIONS WHEREAS, under Section 1-15 of the City Code, all violations of the City Code constitute either misdemeanor criminal offenses or civil infractions; and WHEREAS, misdemeanor offenses carry possible penalties of jail of up to 180 days and a $2,830 fine, and civil infractions carry a penalty of up to $2,830; and WHEREAS, some state laws require local jurisdictions, when enacting local provisions similar to state laws, to be no less restrictive than state laws; and WHEREAS, if a state law violation is classified as a petty offense, the only option under the current City Code is to charge the equivalent municipal violation as a criminal misdemeanor; and WHEREAS, City staff believes certain minor offenses, while appropriately classified as criminal rather than as civil infractions, should not have jail as a possible penalty; and WHEREAS, classifying these minor offenses as civil infractions is also not a satisfactory solution because the Municipal Court cannot issue warrants for failure to appear in court on civil infractions, making them harder to enforce; and WHEREAS, warrants may be issued when defendants fail to appear to court on petty offenses; and WHEREAS, if this Ordinance is approved by the City Council, City staff plans to review certain civil infractions and misdemeanors in the City Code to determine whether they should be more appropriately classified as petty offenses, and bring before the City Council for consideration any resulting amendments to the City Code; and WHEREAS, the City Council has determined that the proposed amendments are in the best interests of the City and are necessary for the health, safety, and welfare of the City’s citizens. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That Section 1-15 of the Code of the City of Fort Collins is hereby amended to read as follows: -2- Sec. 1-15. General penalty and surcharges for misdemeanor offenses, petty offenses, traffic offenses and traffic and civil infractions. (a) Except as to petty offenses, traffic infractions described in Subsection (b) below, and any other civil infraction specified as such in this Code, 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 two thousand six hundred fifty dollars ($2,650.) 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. The maximum fine set forth above shall be adjusted for inflation on January 1 of each calendar year. For the purpose of this provision, inflation shall mean the annual percentage change in the United States Department of Labor, Bureau of Labor Statistics, consumer price index for Denver-Boulder, all items, all urban consumers, or its successor index. … (h) Any person who shall violate any provision of this Code designated as a petty offense shall pay a penalty for such offense of not more than five hundred dollars ($500). Jail shall not be a possible penalty for petty offenses. Section 3. That Section 19-3 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 19-3. Rules of Procedure. (a) The Colorado Municipal Court Rules of Procedure, as amended, the rules for traffic infractions contained in Article IV of this Chapter, the provisions of this Chapter, and the procedures adopted by the Municipal Judge which are not inconsistent therewith, are adopted herein by reference and shall govern the procedures in the Municipal Court in all cases arising from misdemeanor, petty, traffic, parking and civil violations, offenses and infractions under the Charter, Code and City ordinances. … Section 4. That Section 19-45 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 19-45. Application. -3- These rules apply to actions in which only the commission of traffic infractions are charged. In any action in which the commission of a traffic infraction and a misdemeanor or petty offense are alleged in one (1) complaint, the action shall be treated as one (1) proceeding governed by the rules and statutes applicable to the alleged misdemeanor or petty offense. Section 5. That Section 19-62 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 19-62. Rules of Procedure. . . . (b) In any action in which the commission of a civil infraction and a misdemeanor or petty offense are alleged in one (1) complaint, the action shall be treated as one (1) proceeding governed by the rules and statutes applicable to the alleged misdemeanor or petty offense. Introduced, considered favorably on first reading, and ordered published this 5th day of December, A.D. 2017, and to be presented for final passage on the 19th day of December, A.D. 2017. __________________________________ Mayor Pro Tem ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 19th day of December, A.D. 2017. __________________________________ Mayor ATTEST: _______________________________ City Clerk