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HomeMy WebLinkAbout198 - 12/19/2006 - AMENDING THE CITY CODE FOR THE PURPOSE OF DECRIMINALIZING CERTAIN CODE VIOLATIONS BY CREATING A CIV ORDINANCE NO. 198, 2006 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE CODE OF THE CITY OF FORT COLLINS FOR THE PURPOSE OF DECRIMINALIZING CERTAIN CODE VIOLATIONS BY CREATING A CIVIL INFRACTION CLASSIFICATION AND PROCEDURES FOR VIOLATIONS THEREOF WHEREAS, under Section 1-15 of the City Code, nearly all violations of the City Code constitute misdemeanor criminal offenses; and WHEREAS, the City Code presently contains various provisions enacted under the police power of the City which are intended to maintain order and promote the health, safety and welfare of the residents of the City; and WHEREAS, some of these Code provisions address issues of quality of life and neighborhood aesthetics while others address behavioral problems that affect the safety of citizens; and WHEREAS,City staffbelieves that those violations dealingwith antisocial and/or dangerous behaviors should be treated as criminal in nature, while other nuisance violations are more appropriately categorized as civil infractions for which jail is not a possible penalty; and WHEREAS, many nuisance provisions are directed towards the conduct of persons on private property, and are intended to ensure that the physical condition of such properties do not become a nuisance to other residents in the vicinity of the properties or passers-by on the public rights-of-way; and WHEREAS, the City Council is interested in strengthening the provisions of ordinances pertaining to property nuisance violations so as to proceed more expeditiously against the owners and occupants of properties who fail to take affirmative steps to remedy Code violations occurring on their property after receiving notices and civil citations from the City regarding such violations; and WHEREAS, the use of civil or administrative procedures has proven to be an effective tool in reducing repeat nuisance violations at specific properties in jurisdictions contacted by staff, and WHEREAS,for the foregoing reasons,staff has recommended that certain Code provisions be decriminalized and that violations of such Code provisions be designated as civil infractions to encourage compliance with code requirements pertaining to property nuisances; and WHEREAS, in order to afford property owners notice and opportunity to remedy public nuisances without the need for court proceedings,an administrative or civil process would be utilized for civil infractions; and WHEREAS,while the Code currently provides for a Municipal Court Referee to hear civil infractions, specific criteria to select the Referee and specific procedures to adjudicate and review civil infractions and abatement assessments do not currently exist; and WHEREAS,the Council believes that it is in the best interests of the City and its citizens to provide specific procedures for commencement, prosecution and adjudication of civil infraction citations and disputes regarding the propriety of abatement cost assessments; and WHEREAS, the current provisions in the City Code regarding recovery of abatement costs through assessment liens on offending properties is cumbersome and restricts the City from recovering the administrative costs of abatement as an assessment lien against the property if a violating property owner fails to pay the costs of abatement; and WHEREAS,abatement procedures are in need ofrevision for more efficient implementation, enforcement and collection of costs incurred in abating nuisances; and WHEREAS, repeated violations of law, whether designated as civil or criminal, exhibit a conscious disregard for the law; and WHEREAS,the Council is concerned that decriminalization may result in repeat violations with the imposition of only a financial penalty; and WHEREAS, in order to provide an incentive for violators to abate and correct nuisance behaviors, as well as provide a motivation to reduce recidivism, criminal penalties for the third or subsequent violations of civil provisions are appropriate; and WHEREAS, the Council recognizes that some violations constitute an immediate threat to health and safety such that a civil citation should be issued rather than merely a notice to correct and abate prior to serving a citation; and P g WHEREAS, the officers who are designated to enforce these Code provisions needs to be more clearly identified in the Code to allow for the consolidation of enforcement efforts into a"one stop shop"; and WHEREAS, certain other provisions of the City Code regarding general penalties and culpability are in need of amendment in order to be logically and internally consistent with provisions for civil infractions; and WHEREAS, the City Council agrees that in order to achieve more efficient and effective enforcement of the provisions of the Code, the recommended amendments should be made by Council; and WHEREAS, the proposed amendments will add to and improve current processes for handling nuisance violations. -2- NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Sectionl. That Section l-15(f)oftheCodeoftheCityof Fort Collins is hereby amended to read as follows: See.1-15. General penalty and surcharges for misdemeanor offenses, traffic offenses and traffic and civil infractions. (f) Any person found responsible for a violation of this Code designated as a civil infraction shall pay a civil penalty of not more than one thousand dollars ($1,000.) plus costs, damages and expenses as follows: (1) A person found responsible by the Municipal Court or Referee for any violation of this Code charged as a civil infraction shall pay the penalty and costs assessed, which may include all costs, direct and indirect, which the City has incurred in connection with the civil infraction. In addition, the Municipal Judge or Referee may issue any orders necessary to abate a nuisance. (2) If a defendant fails to answer a citation for a civil infraction or notice to appear in court or before a Referee for such infraction, a default judgment shall enter in the amount of the civil penalty plus all costs, expenses and damages. In the event a defendant fails to pay a civil penalty,costs,damages or expenses within thirty(30) days after the payment is due or fails to pay a default judgment,the City may pursue any legal means for collection and,in addition, may obtain an assessment lien against the property that was the subject of the violation if the Code violation is designated as a nuisance in Chapter 20, is a violation of any civil infraction contained in Chapter 5, 12, 20, 24 or 27, or is a violation of Land Use Code Section 3.18.16 and was committed by an owner or tenant of the property, as defined in Land Use Code Section 5.1.2. (3) Each act of violation and every day upon which a violation occurs shall constitute a separate violation. If a person commits three (3) or more violations in twelve (12) consecutive months of any provision of this Code classified as a civil infraction, the third such violation and any subsequent violations within said twelve (12) month period shall constitute a misdemeanor criminal offense and shall be subject to a penalty or imprisonment, costs and fees and any other orders imposed in accordance with §1-15. Section 2. That Section 1-19 of the Code of the City of Fort Collins is hereby amended to read as follows: -3- Sec. 1-19. Accountability; behavior of another; complicity. (a) A person is guilty of an offense or liable for an infraction described in this Code committed by the behavior of another individual if: (1) Such person is made accountable for the conduct of that other individual by the Section in this Chapter which defines the violation or by any other specific provision of this Code or other ordinance of the City; or (2) Such person acts with the culpable mental state sufficient for the commission of the offense or infraction in question and causes an innocent individual to engage in such behavior. For the purpose of this Subsection, innocent individual shall mean any individual not guilty of an offense or liable for an infraction, despite his behavior, because of duress, legal incapacity or exemption, or because such individual was unaware of the unlawful nature of the conduct in question or of the defendant's unlawful purpose,or because of any other factor, precluding the mental state required for the commission of the offense or infraction in question. (b) A person is legally accountable as a principal for the behavior of another constituting an offense or infraction described in this Code if,with intent to promote or facilitate the commission of the offense or infraction, such person aids, abets, or advises or encourages the other individual in planning or committing the offense or infraction. (c) It shall be an affirmative defense under Subsection(b)of this Section if,prior to the commission of the offense or infraction, the defendant terminated his or her efforts to promote or facilitate its commission and either gave timely warning to law enforcement authorities or gave timely warning to the intended victim. (d) In any prosecution for an offense or infraction in which criminal culpability or civil liability is based upon the behavior of another, it is no defense that the other person has not been prosecuted for or convicted of any offense or infraction based upon the behavior in question or has been convicted of a different offense or infraction, or the defendant belongs to a class of persons who by definition of the offense or infraction is legally incapable of committing the offense or infraction in an individual capacity. Section 3. That Section 1-20 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 1-20. Liability of corporation. (a) A corporation is guilty of an offense, or liable for an infraction described in this Code if: -4- (1) The conduct constituting the offense or infraction consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or (2) The conduct constituting the offense or infraction is engaged in, authorized, solicited, requested, commanded or knowingly tolerated by the board of directors or by a managerial agent acting within the scope of his or her employment or on behalf of the corporation. (b) As used in this Section, agent means any director, officer or employee of a corporation, or any other person who is authorized to act on behalf of the corporationManagerial agent means an officer of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees or contractors. j Section 4. That Section 1-21 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 1-21. Liability of an individual for corporate conduct. A person is guilty ofconduct constituting an offense or liable for conduct constituting an infraction described in this Code if he or she engages in such conduct or causes such conduct to occur in the name of or in behalf of a corporation to the same extent as if that conduct were performed or caused by him or her in his or her own name or on his or her own behalf. Section 5. That Section 12-16 of the Code of the Cityof Fort Collins is hereby amended to read as follows: See. 12-16. Definitions. The following words,terms and phrases,when used in this Article,shall have the meanings ascribed to them in this Section: Owner shall mean the owner of record, as shown by any records of the City, County, or State or any other record available to the City, whether an individual, individuals or entity,any agent or representative of the record owner,and any person or persons entitled to possession of the premises by easement, lease or tenancy. Property shall mean in addition to the owner's lot or tract of land, whether improved or vacant,the area to the center of any alley abutting the lot or tract of land; any easements on or under the lot or tract of land;and the sidewalk, curb,gutter and parking area of any street abutting such lot or tract of land. -5- Section 6. That Section 12-25 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 12-25. Violations and penalties. Any person who violates § 12-18 of this Article commits a civil infraction and is subject to a civil penalty, costs and fees as provided for in § 1-15. If a person violates any provision of this Code that is classified as a civil infraction three or more times in twelve(12)consecutive months,the third such violation and any subsequent violations committed within said twelve (12) month period shall constitute a misdemeanor criminal offense. Any person who violates any other provision of this Article also commits a misdemeanor. All such misdemeanor violations are subject to a fine or imprisonment in accordance with § 1-15. A separate offense shall be deemed committed on each day during or on which a civil or criminal violation occurs or continues. Section 7. That Section 19-36 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 19-36. Creation; jurisdiction; qualifications. (a) The Municipal Judge is authorized and empowered to appoint one(1)or more Referees to hear certain municipal ordinance violations relating to parking or municipal code violations designated as civil infractions, and to review any costs of abatement or removal in connection with a violation of a civil infraction provision of the Code, as the Municipal Judge may from time to time designate. Such alleged violations may include any offense or infraction, which may now or in the future be included in the schedule of payable fines established by the Municipal Judge pursuant to law except any offense which might result in the assessment of points by the State Department of Revenue against the responsible party's driving license or privilege. (b) The Referee shall be an attorney admitted to practice law in the State, have a minimum of five (5) years of legal or judicial experience and be a resident of the City. (c) A Referee appointed by the Municipal Judge to hear civil infractions shall be appointed from a list of candidates chosen by a staff committee representing each of the following: Neighborhood and Building Services,the City Attorneys Office,and the Human Resources Department. (d) The City Manager is authorized to appoint a designee to represent the Citys interest, with the advice and consent of the City Attorney's Office, in parking and civil infraction proceedings heard by the Referee. -6- Section 8. That Section 19-39 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 19-39. Order of the Referee. (a) At the completion of any hearing held under the provisions of this Article,the Referee shall enter an order either: (1) Excusing or dismissing a citation if the Referee finds that the violation has not been sustained by the evidence presented; or (2) Making a finding of guilt or responsibility,based upon either a plea of guilty entered or an admission of responsibility tendered, failure of the defendant to appear for the hearing, or the evidence presented at the hearing; and assessing a penalty against the defendant within the schedule of fines published by the Municipal Judge or set by ordinance which was in effect at the time of the violation; and entering any orders or assessing any costs and/or fees that may be permitted pursuant to § 1-15 or any other ordinance or resolution; or (3) Referring the case to the Municipal Court for hearing before the Municipal Judge where the Referee determines, in the exercise of the Referee's discretion, that the facts of the particular case or the issues raised therein require such a hearing. Statements made by the defendant during the course of the hearing before the Referee shall not be introduced against the defendant at any subsequent proceeding before the Municipal Court,nor may the Referee hearing the case be called as a witness against the defendant. (b) If a defendant fails to answer a citation or notice to appear before a Referee, a default judgment will enter in the amount of the civil penalty plus all costs, expenses and damages. In the event a defendant fails to pay a civil penalty, costs, damages and expenses within thirty(30)days after the payment is due or fails to pay a default judgment, the City may pursue any legal means for collection and, in addition,may obtain an assessment lien against the property that is the subject of the violation if the Code violation is designated as a civil infraction. Section 9. That Section 19-40 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 1940. Record of proceedings and hearings. A written record of all proceedings shall be maintained by the Referee. The record shall contain the name of the alleged responsible party, the date of the appearance before the Referee, the complaint number, the date, place and type of violation and any order of the Referee. All hearings and evidence presented at the -7- hearing shall be recorded verbatim, by either electronic devices or stenographic means. Section 10. That Section 19-41 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 19-41. Authorization to reduce or waive penalties. (a) For parking violations,the Referee may assess a penalty less than the payable fine prescribed in the schedule of fines published by the Municipal Judge or may suspend such fine in any case where,in the sound exercise of the Referee's discretion, based upon evidence obtained during the course of the hearing,such action would be in the best interests of justice. (b) For all other civil infractions, the Referee shall assess a penalty within the range of fines established by ordinance or by the schedule of fines published by the Municipal Judge. In addition, the Referee may impose any other costs, damages, expenses and orders that may be authorized under Subsection 1-15(f). Section 11. That Section 19-42 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 19-42. Appeal of decisions. (a) Any defendant affected by a final order or judgment of a Referee,under the authority of this Article, may appeal the Referee's final order or judgment to the Municipal Court by filing a written notice of appeal with the Clerk of the Municipal Court within ten (10) days after the entry of the final order or judgment and depositing with the Municipal Court a fee for preparing the record, or portions thereof designated.Upon the filing of the notice of appeal,no stay of execution of the Referee's order or action shall be granted until the appellant has deposited with the Municipal Court, a cash bond in the amount of any fines and costs imposed by the Referee. (b) If for any reason an adequate record cannot be certified to the Municipal Court,the case shall be tried de novo by the Municipal Judge. No action on appeal shall result in an increased penalty. (c) If a notice of appeal is not filed within ten (10) days after the final order or judgment or the order or action is not vacated by the Municipal Judge upon the motion of the Municipal Judge within such period,the order or action of the Referee shall be final. (d) In no event shall the Referee testify on appeal regarding any action previously before the Referee, except concerning actions in the nature of contempt, including failure to appear. -g- (e) Appeals shall be in accordance with Rule 37 of the Colorado Rules of Criminal Procedure. Section 12. That a new Article V in Section 19 is hereby added to the Code of the City of Fort Collins and reads in its entirety as follows: ARTICLE V. RULES FOR CIVIL INFRACTIONS Sec. 19-61. In general. All violations of any provision of this Code classified as a civil infraction shall constitute civil matters and not criminal violations, except as provided in §1- 15. Sec. 19-62. Scope and purpose. These rules are promulgated pursuant to Article VII of the Charter to govern practice and procedures for the handling of civil infractions. The purpose of these rules is to provide for the orderly,expeditious and fair disposition of such infractions. See. 19-64. Definitions. The following words,terms and phrases,when used in this Article,shall have the meanings ascribed to them in this Section: Charging document shall mean the document initiating the civil infraction matter, whether denoted as a complaint, summons and complaint, citation, penalty assessment notice,removal assessment or other document charging the person with the commission of a civil infraction or infractions. Defendant shall mean any responsible party charged with the commission of a civil infraction. Judgment shall mean a finding by the Municipal Judge or Referee of liability against any person for the commission of a civil infraction. Officer shall mean a peace officer,code enforcement officer or inspector, or other City official who is authorized pursuant to §2-502(b)to enforce the provisions of the City Code. Penalty shall mean a fine imposed pursuant to this Code for the violation of a civil infraction. Responsible Party shall mean a person or entity upon whom a duty to perform or refrain from performing an act,or to maintain or prohibit a condition, is imposed, by a provision of the City Code classified as a civil infraction, including,in the case -9- of property violations, any adult resident or tenant(s), the property owner or an individual or entity who, acting as an agent for or in any other legal capacity on behalf of the owner, has authority over the subject property. Sec. 19-65. No jury trial of infractions. A defendant brought to hearing solely upon a civil infraction or infractions shall have no right to a trial by jury as contemplated by§ 13-10-114,C.R.S.,or Rule 223, C.M.C.R., and the trial or hearing of civil infractions shall be to the Municipal Court or Referee. No defendant found liable for a civil infraction shall be punished by imprisonment for said infraction. Sec. 19-66. Commencement of action; citation procedure. (a) Officers shall have the authority to initiate enforcement proceedings as provided below. (1) An officer who has reasonable grounds to believe that a responsible party has committed a civil infraction under the Code is authorized to serve a notice of violation to the responsible party. Except as otherwise provided in this Code, the officer shall set a reasonable time period within which the responsible party must correct the violation. This determination shall be based on considerations of fairness,practicality,ease of correction,the nature,extent, and probability of danger or damage to the public or property, and any other relevant factor relating to the reasonableness of the time period prescribed. An officer may immediately serve a civil citation to a responsible party, without prior notice, if there is reason to believe that the violation presents a threat to the public health, safety, or welfare, if the damage done by the violation is irreparable or irreversible, or if the violation is a second or subsequent violation by the responsible party. (2) The citation form shall include, but need not be limited to, the following: a. Date and time of issuance. b. Name and signature of officer. C. Name and address of the responsible party(ies). d. Code section for violation charged. e. Brief description of the nature of the violation, including location, date and time of violation and description of the actions required to correct the violation. f. Amount of the applicable civil penalty and costs, assessments and fees. g. Procedure for the defendant to follow in paying the civil penalty, costs, assessments and fees or contesting the citation. h. Notice that additional citations may be served for each day that the applicable violation is found to exist. -10- i. Notice that failure to pay the civil penalty,costs,assessments and fees within the time allowed and failure to request a hearing within ten (10) days of service of the citation shall constitute a waiver of the responsible party's opportunity for a hearing, and that, in such case, judgment may be entered up to the amount stated on the citation together with any court, abatement or removal costs, as applicable. (3) The officer may require that a responsible party or any person receiving a citation provide proof of identity and residential or work address. (4) The officer shall attempt to serve the citation to a responsible party at the site of the violation. If no responsible party can be located at the site of the violation, a copy of the citation shall be served by mail to the responsible party via first class mail at any last known address of said party in the records of the City or County and a copy shall also be left with any adult person residing or working at the site of the violation. If no adult person is found at the site and the violation occurred on private property or on property for which a responsible party has responsibility under any other ordinance or the violation involves a vehicle or trailer as the nuisance, then a copy of the citation shall be posted in a conspicuous place on the property or attached to the vehicle or trailer, whichever is applicable. (5) The officer or inspector shall attempt to obtain the signature of the person to whom he/she served the citation;however, if the citation is mailed or posted or if the person fails or refuses to sign the citation, such failure or refusal shall not affect the validity of the citation or any subsequent proceedings. (6) Proper notice shall be deemed served on the date of receipt by the responsible party if personally served, or upon the fifth day after mailing, attaching or posting of the citation. Sec. 19-67. Payment without appearance. (a) The Neighborhood and Building Services Director or,in the case of a forestry code violation, the Forestry Director, shall accept payment of the amount due for a civil infraction from a defendant if such payment is made within ten (10) days following service of the citation for the violation. Such payment shall be separately accounted for and deposited into the City's general fund in accordance with rules and procedures of the Finance Department. (b) Payment of the total penalty, costs and fees shall constitute a waiver by the responsible party of rights and acknowledgment of liability. (c) Such payment shall constitute an entry and satisfaction of judgment. -11- (d) Payment of the penalty and costs shall not excuse the failure to correct violations nor shall it bar further enforcement by the City. Sec. 19-68. Hearing procedures. (a) If a defendant wishes to contest a citation, he or she, within ten (10) days following service of the citation, shall file a written request with the Neighborhood and Building Services Director for a hearing before the Municipal Referee. (b) The hearing of all civil infractions shall be conducted pursuant to the Colorado Rules of Evidence and the order of proceedings shall be those followed by the Municipal Court in offenses tried to the Municipal Judge, except as otherwise specifically stated herein. (c) The City and the defendant(s)may be represented by counsel. Sec. 19-69. Subpoenas and discovery. (a) At the request of any party to the hearing, the Municipal Referee may subpoena witnesses, documents or other evidence where the attendance of the witness or the admission of evidence is necessary to decide the issues at the hearing. The issuance and service of a subpoena shall be as provided in Rule 217, C.M.C.R. (b) Discovery shall not be available prior to hearing. (c) At the time of hearing,the defendant and prosecuting officer or attorney shall be entitled to inspect all documents prepared by the other which are intended to be used in the presentation of evidence. Sec. 19-70. Judgment and procedures after hearing. (a) If the civil infraction(s) is proven by a preponderance of the evidence, the Municipal Referee shall find the defendant liable for the violation and enter appropriate judgment. If, however, the civil infraction is not proven by a preponderance of the evidence, the Municipal Referee shall dismiss the charge and enter appropriate judgment. (b) If the defendant is found liable, the Municipal Referee shall assess the appropriate penalty and any additional costs or fees authorized by law or ordinance. (c) The judgment shall be satisfied upon payment to the Neighborhood and Building Services or Forestry Director, with respect to Forestry code violations, in the total amount of penalty, costs and fees assessed. (d) If the defendant fails to satisfy the judgment immediately following the final hearing or within the time allowed by a reasonable extension, not to exceed thirty -12- (30) days granted upon a showing of good cause by and upon application of the defendant, then such failure shall be treated as a default. Sec. 19-71. Post-hearing motions. There shall be no post-hearing motions except for a motion to set aside a default judgment as provided in § 19-74. Sec. 19-72. Continuances. Continuances may be granted by the Municipal Referee only upon a showing of good cause by the City or the defendant. Sec. 19-73. Default. (a) If any defendant fails to answer a citation or fails to appear for any hearing, a default judgment shall enter against the defendant pursuant to § 19-39(b). (b) The Municipal Judge or Referee may set aside a judgment entered under this rule on a showing of good cause or excusable neglect by the defendant. A motion to set aside the judgment shall be filed at the office where default entered not more than seven(7) consecutive days after entry of judgment. (c) No warrant shall issue for the arrest of any defendant who fails to appear at a hearing or fails to satisfy a judgment entered pursuant to this Article. See. 19-74. Appeal. Appeal of any finding of liability for a civil infraction by a Referee shall be subject to the same rules and procedures contained in § 19-42. Appeal of findings by the Municipal Court shall be pursuant to rules and procedures applicable to municipal offenses generally. Sec. 19-75. Collection of judgments. Upon finality of a judgment for a civil infraction, and in addition to all legal and administrative enforcement or collection procedures including assessment liens on property,and remedies otherwise available,the City Attorney is authorized to file a civil action with any state court having appropriate jurisdiction, which filing shall include the transcript of the case certified by the Municipal Court Clerk and shall ask for judgment based thereon. Upon the entry of such judgment, the City Attorney shall be authorized to proceed with all judgment execution and collection procedures authorized by law for the amount of the judgment, costs and fees incurred in the proceedings and legal interest. Sec. 19-76. Inspection. -13- (a) Whenever necessary to make an inspection to enforce any of the provisions of this Article or any other section of the Code or Land Use Code or whenever the Enforcement Officer has reasonable grounds to believe that there exists in any building or upon any premises any condition or violation which makes such building or premises unsafe,dangerous or hazardous,the Enforcement Officer may enter such building or premises at all reasonable times to inspect it or to perform any duty imposed upon the Enforcement Officer by this Article. If such building or premises is occupied,the Enforcement Officer shall first present proper credentials and request entry. If such building or premises is unoccupied,the Enforcement Officer shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. If such entry is refused or if no person having control of the building or premises can be located, the Enforcement Officer shall have recourse to every remedy provided by law to secure entry. (b) If the Enforcement Officer has first obtained an inspection warrant or other remedy provided by law to secure entry,no owner or occupant or any other persons having charge, care or control of any building or premises shall fail or neglect, after proper request is made as herein provided, to promptly permit entry therein by the Enforcement Officer for the purpose of inspection and examination pursuant to this Article. Any such failure to permit entry upon request pursuant to a valid inspection warrant shall be a misdemeanor punishable by the provisions set forth in § 1-15. Section 13. That Section 20-41 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 20-41. Definitions. The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section: Owner or occupant shall mean the owner of record as shown in any record of the City, County or State or any agent or representative of such owner and any person entitled, by easement, lease or tenancy, to possession or use of the premises. Property shall mean in addition to the owner's lot or tract of land whether improved or vacant,the area to the center of any alley abutting the lot or tract of land; any easements on or under the lot or tract of land; and the sidewalk, curb, gutter and parking area of any street abutting such lot or tract of land. Section 14. That the title of Section 20-42 contained in the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2042. Weeds and rubbish nuisances prohibited. -14- Section 15. That the title of Section 20-42.5 contained in the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 20-42.5. Outdoor furniture restriction; defenses. Section 16. That the title of Section 20-43 contained in the Code of the City of Fort Collins is hereby amended to read as follows: Sec.20-43. Wildlife habitat,certified natural areas and compost exceptions. Section 17. That Section 20-44 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec.20-44. Notice of violation;removal authority and procedure; assessment lien on the property. (a) The Neighborhood and Building Services Director and any officer, as such is defined in § 19-66, are authorized and directed to give notice to any owner and occupant whose property, open area, ditch or right-of-way is being kept or maintained in violation of the provisions of this Article. Such notice may be personally served upon such person, or, if not personally served, shall be deposited in the United States mail, addressed to the occupant and owner of record at the address on the assessment roll of the Larimer County Assessor or at such other,more recent address as may be available to the City,or with respect to notice to occupants, at the address of the property so occupied. (1) The notice shall state that if the offending weeds and/or grasses are not cut or eradicated (as applicable), and/or the offending brush pile, refuse and/or rubbish are not removed from such property,open area,ditch or right-of-way on or before five (5) days from the date of such notice, a civil citation will issue and the removal will be done by the City and any costs of abatement, including the cost of inspection,the cost of any grading or sloping necessary to protect the public safety and other incidental costs in connection therewith and the costs for carrying charges and costs of administration will be charged against the property,open area,ditch or right-of-way,in addition to any other penalty and costs or orders that may be imposed. With respect to rubbish only,the notice shall also state that if said owner desires a hearing before the Municipal Referee to contest the declaration of nuisance and/or the removal, such owner shall request such hearing in writing to the Director of Neighborhood and Building Services within five (5) days of mailing of the notice and shall further state that if a request for such hearing is made, the City will remove the rubbish in accordance with Subparagraph(b)below and will store the material pending the holding of the hearing and the determination therefrom. The notice shall further state that if no request for such hearing is timely filed, the City will remove the rubbish in accordance with Subparagraph (b) below and shall destroy or otherwise dispose of the rubbish. -15- (b) If the property, open area, ditch or right-of-way has not been brought into compliance with this Article within five(5)days from the date of the notice and if the owner has not requested a hearing before the Municipal Referee to contest the declaration of nuisance and/or the removal as provided in Subparagraph (a) above, the removal may be done by the City, either by City personnel or by private contractors,as the Director of Neighborhood and Building Services shall determine. In the event of such removal by the City, the cost, including inspection, removal of obstructions,if any,the cost of any grading or sloping necessary to protect the public safety, other incidental costs in connection therewith, and the costs for carrying charges and administration shall be assessed against the offending property, open area,ditch or right-of-way and the owner thereof. With respect to rubbish only,if the owner has requested a hearing pursuant to the provisions of Subsection(a),removal of the rubbish may be accomplished as provided in this Subsection; provided, however,that such material removed shall be stored by the City until such time as the Referee holds the hearing and determines,based upon the evidence presented by the owner and the staff of the City,whether the nuisance should have been declared and the rubbish removed. If the Referee determines that the declaration of nuisance and removal is proper,then the rubbish shall be destroyed or otherwise disposed of by the City, and the additional costs of storage shall be assessed, together with all other costs, as provided above. If the Referee determines that the declaration of nuisance and removal was improper, then the material shall be returned to the owner and no costs shall be assessed. (c) Any cost assessment shall be a lien in the several amounts assessed against each property,open area,ditch or right-of-way until paid and shall have priority over all other liens, except general taxes and prior special assessment liens. If any such assessment is not paid within thirty (30) days after it has been certified by the Director of Neighborhood and Building Services and billed by the Financial Officer or his designee to the owner by deposit in the United States mail addressed to the owner of record at the address as shown on the tax rolls or such other, more recent address as may be available to the City,and any agents,representatives or occupants as may be known, the Financial Officer, or his designee is hereby authorized to certify to the County Treasurer the list of delinquent assessments, giving the name of the owner as it appears of record, the number of the lot and block and the amount of the assessment plus a ten-percent penalty. The certification is to be the same in substance and in form as required for the certification of other taxes. The County Treasurer,upon receipt of such certified list,is hereby authorized to place it upon the tax list for the current year and to collect the assessment in the same manner as general property taxes are collected, together with any charges as may by law be made by the County Treasurer and all laws of the State for the assessment and collection of general taxes, including the laws for the sale of property for taxes, and the redemption thereof shall apply to and have full force and effect for the collection of all such assessments. Notwithstanding the foregoing, if the offending property, open area, ditch or right-of-way is not subject to taxation, the City may elect alternative means to collect the amounts due pursuant to this Article, including the -16- commencement of an action at law or in equity and, after judgment, pursue such remedies as are provided by law. Section 18. That Section 20-45 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 2045. Violations and penalties. Any person who violates any provision of this Article, except §§ 20-42(t) and 20-426), commits a civil infraction and is subject to a civil penalty, costs and fees as provided for in § 1-15. Any person who violates §§ 20-42(f) or 20-420) commits a misdemeanor criminal offense and is subject to a penaltyor imprisonment, costs and fees and any other orders imposed in accordance with § 1-15. If a person commits three(3)or more violations in twelve(12)consecutive months of any other provision of this Code classified as a civil infraction,the third such violation and any subsequent violations within said twelve (12) month period shall also constitute a misdemeanor criminal offense subject to §1-15. Section 19. That the title of Section 20-94 contained in the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 20-94. Sheltered or exempt vehicles must comply with other nuisance provisions. Section 20. That Section 20-95 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 20-95. Abatement; removal. The owner and the occupant of the private property on which the unsheltered storage is occurring and the owner of the inoperable motor vehicle in question are jointly and severally responsible to abate the nuisance. Every person who fails, neglects or refuses to abate the nuisance commits a civil infraction. A separate offense shall be deemed committed on each day during or on which a violation occurs or continues. The payment of any penalty does not exempt the offender from compliance with the requirements of this Article. No person, after abatement notification has been given, shall move the inoperable motor vehicle in question to any other private property upon which storage of such vehicle is not permitted or onto any public property or right-of-way. Section 21. That a new Section 20-96 is hereby added to the Code of the City of Fort Collins and reads in its entirety as follows: See. 20-96. Violations and penalties. -17- Any person who violates any provision of this Article commits a civil infraction and is subject to a civil penalty, costs and fees as provided for in § 1-15. If a person commits three(3) or more violations in twelve(12) consecutive months of any provision of this Code classified as a civil infraction, the third such violation and any subsequent violations within said twelve(12)month period shall constitute a misdemeanor criminal offense and shall be subject to a penalty or imprisonment, costs and fees and any other orders imposed in accordance with § 1-15. Section22. That Section 20-100 of the Code of the Cityof Fort Collins is hereby amended to read as follows: Sec. 20-100. Nuisance declared and prohibited; penalty. The placement,moving or transporting of snow by any person from privately owned property that is not used for residential purposes onto any street or right-of- way (as that term is defined in § 20-61 of this Chapter) is hereby declared to constitute a nuisance as a snow obstruction, and a hazard to the public health and safety. No person shall place,move or transport, or cause any other person to place, move or transport,snow from privatelyowned property that is not used for residential purposes onto any street or right-of-way(as that term is defined in § 20-61 of this Chapter). Any person who violates any provision of this Article commits a civil infraction and is subject to a civil penalty, costs and fees as provided for in § 1-15. Any person who commits three (3) or more violations in twelve (12) consecutive months of any provision of this Code classified as a civil infraction the third such violation and any subsequent violations within said twelve(12)month period shall constitute a misdemeanor criminal offense and is subject to a penalty or imprisonment, costs and fees and any other orders imposed in accordance with § 1- 15. Section23. That Section 20-101 of the Code of the Cityof Fort is hereby amended to read as follows: Sec. 20-101. Removal by City; lien. (a) The City Manager may, upon the discovery of any such placement, moving or transporting of snow onto a street or right-of-way, immediately have the hazard corrected by removal of such snow from such street or right-of-way; and the cost of such removal, including the cost of inspection and other incidental costs in connection therewith, including the costs for carrying charges and costs of administration,shall be assessed against the property abutting upon or adjacent to the snow obstruction and the owner thereof. (b) If the property owner contests the declaration of nuisance and/or the assessment of costs, s/he shall file a written request with the Director of Neighborhood and Building Services, within ten (10) days from the service of a notice of assessment, a written request for a hearing before the Municipal Referee. -18- (c) Such assessment shall constitute an automatic, perpetual lien in the several amounts assessed against each property from the date the assessment became due until paid. Such liens shall have priority over all other liens except general taxes and prior special assessments. In case any such assessment that has not been set for hearing pursuant to subsection(b)is not paid within thirty(30)days after it has been certified by the Director of Neighborhood and Building Services and billed by the Financial Officer or his designee to the owner by deposit in the United States Mail, addressed to the owner of record at the address as shown on the tax rolls of the Larimer County Assessor, or such other,more recent address as may be available to the City, and any agents, representatives or occupants as may be known, the Financial Officer, or his designee shall be authorized to certify to the County Treasurer the list of delinquent assessments,giving the name of the owner of record, the number of the lot and block and the amount of assessment plus a ten(10)percent penalty. The certification shall be the same in substance and in the same form as required for the certification of taxes.The County Treasurer,upon the receipt of such certified list, is hereby authorized to place the same upon the delinquent tax list for the current year and to collect the assessment in the same manner as taxes are collected with such charges as may by law be made by the County Treasurer and all laws of the state for the assessment and collection of the general taxes, including the laws for the sale of property for unpaid taxes, shall apply to and have full force and effect for the collection of all such assessments.Notwithstanding the foregoing,if the offending property is not subject to taxation,the City may elect alternative means to collect the amounts due pursuant to this Article, including the commencement of an action at law or in equity and, after judgment, pursue such remedies as are provided by law. Section 24. That Section 20-102 of the Code of the City of Fort Collins is hereby deleted in its entirety. Section 25. That a new Section 20-107 is hereby added to the Code of the City of Fort Collins and reads in its entirety as follows: Sec. 20-107. Violations and penalties. Any person who violates any provision of this Article commits a civil infraction and is subject to a civil penalty, costs and fees as provided for in § 1-15. If a person commits three(3)or more violations in twelve (12) consecutive months of any provision of this Code classified as a civil infraction, the third such violation and any subsequent violations within said twelve(12)month period shall constitute a misdemeanor criminal offense and shall be subject to a penalty or imprisonment, costs and fees and any other orders imposed in accordance with § 1-15. Section 26. That Section 24-21 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 24-21. Removal of snow and ice required, lien. -19- (a) The owners or occupants of property abutting upon or adjacent to sidewalks within the City shall at all times keep the sidewalks abutting upon or adjacent to the lot or lots owned or occupied by them free and clear of snow and ice. If any such owners or occupants shall fail to remove the snow and ice from the sidewalks abutting upon or adjacent to their property within twenty-four(24) hours after the accumulation of snow and ice, then the City may at once have the hazard corrected by removal of snow and ice from the sidewalk or by the application of abrasive material; and the cost, including inspection and other incidental costs in connection therewith, including the costs for carrying charges and costs of administration,shall be assessed against the property abutting upon or adjacent to the snow obstruction and the owner thereof. (b) If the property owner contests the declaration of nuisance and/or the assessment of costs, s/he shall file a written request with the Director of Neighborhood and Building Services, within ten (10) days from the service of a notice of assessment, a written request for a hearing before the Municipal Referee. (c) Such assessment shall constitute an automatic, perpetual lien in the several amounts assessed against each property from the date the assessment became due until paid. Such liens shall have priority over all other liens except general taxes and prior special assessments. In case any such assessment that has not been set for hearing pursuant to subsection(b)is not paid within thirty(30)days after it has been certified by the Director of Neighborhood and Building Services and billed by the Financial Officer or his designee to the owner by deposit in the United States Mail, addressed to the owner of record at the address as shown on the tax rolls of the Larimer County Assessor, or such other,more recent address as may be available to the City, and any agents, representatives or occupants as may be known, the Financial Officer, or his designee shall be authorized to certify to the County Treasurer the list of delinquent assessments,giving the name of the owner of record, the number of the lot and block and the amount of assessment plus a ten(10)percent penalty. The certification shall be the same in substance and in the same form as required for the certification of taxes.The County Treasurer,upon the receipt of such certified list, is hereby authorized to place the same upon the delinquent tax list for the current year and to collect the assessment in the same manner as taxes are collected with such charges as may by law be made by the County Treasurer,and all laws of the State for the assessment and collection of the general taxes,including the laws for the sale of property for unpaid taxes, shall apply to and have full force and effect for the collection of all such assessments.Notwithstanding the foregoing,if the offending property is not subject to taxation,the City may elect alternative means to collect the amounts due pursuant to this Article, including the commencement of an action at law or in equity and, after judgment,pursue such remedies as are provided by law. Section 27. That Section 24-22 of the Code of the City of Fort Collins is hereby deleted in its entirety. -20- Section 28. That Section 27-56 of the Code of the City of Fort Collins is hereby amended to read as follows: See. 27-56. Right of entry. In order to accomplish the purposes of this Division, the City Forester, officers as defined in § 19-66 or any contractor hired by the City Forester is hereby authorized to go upon any public or private property within the City for the purpose of inspecting trees or shrubs. Subject to the notice and hearing requirements of this Division, the City Forester or a contractor hired by the City Forester is also authorized to go upon any public or private property in the City for the purpose of cutting,trimming,pruning and/or removing trees or shrubs that the City Forester has determined present a danger to persons using, or property located upon, the public rights-of-way or other City-owned property within the City, or in order to treat or eliminate a destructive or communicable disease or insect infestation. Section29. That the title of Section 27-57 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 27-57. Duty of property owner to prune or remove trees or shrubs. Section 30. That Section 27-58 of the Code of the City of Fort Collins is hereby amended to read as follows: See.27-58. Control of tree diseases or insect infestations on private property. Upon notification by the City Forester in accordance with § 27-59 , the property owner of property upon which is located a tree afflicted with any destructive or communicable disease or insect infestation which endangers the growth, health, life or well-being of trees in the City, or which is capable of causing an epidemic spread of communicable disease such as Dutch elm disease or insect infestation shall eradicate, remove or otherwise control such condition within the time period specified in such notice. Section 31. That Section 27-59 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec.27-59. Notice of violation; removal authority and procedure; lien on the property. (a) The City Forester is authorized and directed to give notice to any owner that is in violation of any provision of this Article. In addition, officers as defined in § 19-66 are authorized and directed to give notice to any owner or occupant that is in violation of§§27-18,27-57(a)(1-4)or 27-58. Such notice shall be personally served upon such person, or, if not personally served, conspicuously posted upon the property and also deposited in the United States mail, addressed to the owner of -21- record at the address on the assessment roll of the Larimer County Assessor or at such other, more recent address as may be available to the City. With respect to occupants, notice may be mailed to the address of the property so occupied. (1) The notice shall state that if the offending trees, parts of trees, or shrubs are not pruned, trimmed, treated, removed or otherwise controlled as required within fourteen(14)days or within any longer time period as specified by the City Forester, a civil citation may issue and the work may be done by the City and any costs,including the cost of inspection,and other incidental costs in connection therewith and the costs for carrying charges and costs of administration will be charged against the property, in addition to any other penalty and costs or orders that may be imposed. (b) If the trees or shrubs have not been brought into compliance with this Article within fourteen(14) days or within any longer time period as specified by the City Forester,from the date of the notice,the work may be done by the City,either by City personnel or by private contractors, as the City Forester shall determine and a civil infraction citation may be issued. In the event of abatement by the City, the cost, including inspection, other incidental costs in connection therewith, and an amount for carrying charges and administration may be assessed against the property owner, in addition to any fines, penalties, costs and fees imposed. (c) Such assessment shall constitute an automatic, perpetual lien in the several amounts assessed against each property from the date the assessment became due until paid. Such liens shall have priority over all other liens except general taxes and prior special assessments. In case any such assessment that has not been set for hearing pursuant to §27-60 is not paid within thirty (30) days after it has been certified by the Director of Neighborhood and Building Services or City Forester and billed by the Financial Officer or his designee to the owner by deposit in the United States Mail,addressed to the owner of record at the address as shown on the tax rolls of the Larimer County Assessor or such other, more recent address as may be available to the City, and any agents, representatives or occupants as may be known, the Financial Officer, or his designee shall be authorized to certify to the County Treasurer the list of delinquent assessments,giving the name of the owner of record, the number of the lot and block and the amount of assessment plus a ten(10)percent penalty. The certification shall be the same in substance and in the same form as required for the certification of taxes.The County Treasurer,upon the receipt of such certified list, is hereby authorized to place the same upon the delinquent tax list for the current year and to collect the assessment in the same manner as taxes are collected with such charges as may by law be made by the County Treasurer and all laws of the State for the assessment and collection of the general taxes,including the laws for the sale of property for unpaid taxes, shall apply to and have full force and effect for the collection of all such assessments.Notwithstanding the foregoing,if the offending property is not subject to taxation,the City may elect alternative means to collect the amounts due pursuant to this Article, including the commencement of an -22- action at law or in equity and, after judgment,pursue such remedies as are provided by law. Section 32. That Section 27-60 of the Code of the City of Fort Collins is hereby deleted in its entirety. Section 33. That Section 27-61 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 27-60. Time limit for compliance; appeals; hearings. Upon receipt of a notice given by the City Forester pursuant to § 27-57, §27- 18 or§ 27-58,the property owner shall have the right to contest the order of the City Forester to the Municipal Court Referee by filing with the Municipal Court Referee a petition for review at the office of Neighborhood& Building Services . A written request for a hearing before the Municipal Court Referee must be submitted within five(5)days from the date of service of the order. Pending a final determination by the Municipal Court Referee, the property owner need not complete the work required to be done by the City Forester,unless such work involves a violation of § 27-57 (a)(5). If the Municipal Court Referee sustains all or any part of the order of the City Forester, the Municipal Court Referee shall set the time within which the required work shall be completed,and the property owner must complete the required work within such time. Section 34. That Section 27-62 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 27-61. Noncompliance with notice; liability of property owners. (a) If a property owner fails to accomplish any work required under § 27-18, § 27-57 or§27-58 within the time specified on a notice given by the City Forester,and the property owner has not contested the notice to the Municipal Court Referee as provided in § 27-60, the City Forester shall cause the work to be done pursuant to § 27-59 (b), and the property owner must reimburse the City for all costs pursuant to § 27-59(c). (b) If the City Forester has caused a property owner to be assessed the costs of complete tree removal, and such property owner is unable to pay the cost of such work within thirty(30)days, the property owner and City Forester may enter into an agreement for the payment of the same in monthly installments over a period not to exceed three (3) years. Any unpaid balance due under such agreement shall bear interest at the rate of six (6) percent per annum. Section 35. That Section 27-63 of the Code of the City of Fort Collins is hereby deleted in its entirety. -23- Section 36. That Section 27-64 of the Code of the City of Fort Collins is hereby deleted in its entirety. Section 37. That a new Section 27-62 is hereby added to the Code of the City of Fort Collins and reads in its entirety as follows: Sec. 27-62. Violations and penalties. Any person who violates §§ 27-18, 27-18(a)(1-4),or 27-58 commits a civil infraction and is subject to a civil penalty, costs and fees as provided for in § 1-15. Any person who commits three (3) or more violations in twelve (12) consecutive months of any provision of this Code classified as a civil infraction, the third such violation and any subsequent violations within said twelve(12) month period shall constitute a misdemeanor criminal offense and shall be subject to a fine or imprisonment, costs and fees and any other orders imposed in accordance with § 1- 15. Introduced, considered favorably on first reading, and ordered published this 5th day of December, A.D. 2006, and to be presented for final passage o e 19th day of December A.D. II 2006. ✓ tip Mayor C T: City Clerk Passed and adopted on final reading on the 19th day of D ber, A.D. 2006. Mayor ATTEST: - 4UL)� City Clerk -24-