[bouldercouncilhotline] Hotline: Smoking ban

[cmosupport at bouldercolorado.gov]

Sender: Tom Carr

KC,

Here is Sandra's explanation of the penalty clause.  I have asked her to draft a proposed amendment to align the penalty provision with our recent changes to the code.  It will be available on the dais tonight if you want to propose it as a first reading change.

Tom

-----Original Message-----
From: Llanes, Sandra 
Sent: Monday, October 15, 2012 11:41 PM
Subject: Hotline: Smoking ban

Tom,

I don't have a strong position one way or the other.  However, the BPD officers who have been involved with this ordinance since the beginning of the year - Sgt. Gerhardt and Greg Testa specifically asked that we not go with the staggered fine penalty similar to the dog at large violation.  They find it difficult to manage all of the different bonds associated with each penalty and they were looking for some consistency.

Another thing they noted was that from a practical perspective it is helpful to them if it is a warrantable offense.  What I mean by that is that, if the person doesn't show up for their court date, the court can then issue a warrant and if they are found in violation of that offense or any other offense they can "remove" the problem on the Mall, etc.

I do not believe that $1000 fine or jail time would ever be recommended by a prosecutor on a first offense.  However, that type of penalty is an effective tool to use in the case of chronic re-offenders in the form of suspended sentences.  For example, a person may be sentenced to pay $100 fine with $500 suspended so long as they don't have another similar violation for a year.  

HAVING SAID ALL THAT, what I did not realize until now is that the other smoking violation penalties in the same chapter have recently changed to the new penalties (1st and 2nd offense max fine of $500; third offense subject to 5-2-4) when they used to be 5-2-4 "General Penalties".  I seem to recall that you or prosecution were involved in an ordinance that changed many penalties but I didn't make the connection that it had affected smoking.

So from a practical and probably a consistency perspective its hard to argue that the penalty should be any different than what other smoking violations are.

HOWEVER, all violations related to the Mall under Title 4 - Mall Permits and Leases still fall under the penalties for general offenses of BRC 5-2-4:

    BRC 4-11-4 Uses Prohibited Without Permit.

             (a)   (1) No person shall sell, display for sale, or advertise for sale any goods or services to the public on the mall without a valid permit or lease therefor issued under this chapter.  

Public urination is another violation that didn't change penalty schedule:

5-6-7 Public Urination

No person shall urinate or defecate while on the mall, in any city park within the city limits, on any property zoned for residential uses without the express permission of the owner, or within any portion of the city zoned for business, industrial, or public uses, unless such voiding is made into a receptacle that has been provided for that purpose that stores or disposes of the wastes in a sanitary manner and that is enclosed from the view of the general public.

If I leave the ordinance as it reads now, the 5-2-4 penalty provision applies unless I indicate otherwise:

5-2-4 General Penalties.

(a) The penalty for violation of any provision of this code or any ordinance is a fine of not more than $1,000.00 per violation, or incarceration for not more than ninety days in jail, or by both such fine and incarceration, except as follows:

(1) Where any different provision is made elsewhere in this code or any ordinance;

(2) Where the defendant's criminal culpability is vicarious, jail may not be imposed as a penalty;

(3) Where a non-traffic violation is involved, in order to impose a jail sentence, the court must be satisfied from the evidence and other material available to it for sentencing that the defendant acted intentionally, knowingly, or recklessly with respect to the material elements of the violation. Where traffic offenses are concerned, ordinary negligence is sufficient to permit the imposition of jail;

(4) Where a defendant is a child under the age of ten years, in which case the child may not be held accountable in municipal court for any violation; or

(5) Where the defendant is a child of ten years through and including seventeen years of age, the child may not be sentenced to jail except upon conviction of a moving traffic violation for which penalty points are assessed against the driving privilege under the laws of this state.4

(b) Nothing in subsection (a) of this section is intended to:

(1) Remove or limit the discretion or authority of any public official to charge a child in a court other than the municipal court; or

(2) Limit the power of the municipal court to incarcerate a defendant for nonpayment of a fine or for contempt.

(c) The penalty for violation of any rule or regulations promulgated under authority delegated by the charter, this code, or any ordinance of the city is a fine of not more than $1,000.00 per violation, except as provided in paragraph (a)(4) of this section.

(d) The maximum penalty for violation of sections 5-3-1, "Assault in the Third Degree," 5-3-2, "Brawling," 5-3-3, "Physical Harassment," 5-3-4, "Threatening Bodily Injury," 5-3-6, "Use of Fighting Words," and 5-4-1, "Damaging Property of Another," B.R.C. 1981, when the offense is found to be a bias motivated crime, shall be a fine of not more than $2,000.00 per violation, or incarceration for not more than ninety days in jail, or both such fine and incarceration. The court shall not be required to make the findings required by subsection (a)(3) of this section in order to impose a sentence including incarceration. This ordinance shall not be applied in a manner that suppresses abstract thought or protected speech.

Some examples of violations that have the new penalty format:

5-6-8 Skateboards on Mall

No person on the mall shall ride upon the mall any skateboard, skates, coaster or other similar device. The maximum penalty for a first or second conviction within two years, based on date of violation of this section, is a fine of $500.00. For a third and each subsequent conviction within two years, based upon the date of the first violation, the general penalty provisions of section 5-2-4, "General Penalties," B.R.C. 1981, shall apply.

Ordinance No. 7831 (2012)

5-6-9 Projectiles on Mall.

(a) No person shall cast, throw or propel any projectile on the mall. This prohibition includes, without limitation, throwing balls, boomerangs, bottles, darts, Frisbees and other like devices, model airplanes, rocks, snowballs and sticks. The maximum penalty for a first or second conviction within two years, based on date of violation of this section, is a fine of $500.00. For a third and each subsequent conviction within two years, based upon the date of the first violation, the general penalty provisions of section 5-2-4, "General Penalties," B.R.C. 1981, shall apply.

(b) This section does not apply to a juggler if the juggler does not cast, throw, or propel a knife, including, without limitation, a knife with a blade three and one-half inches in length or less, or burning projectile or if the juggler is acting within the terms of a special entertainment permit issued under the provisions of chapter 4-11, "Mall Permits and Leases," B.R.C. 1981.


BRC 6-1-17 Animal on the Mall

.....The maximum penalty for a first or second conviction within two years, based on date of violation, is a fine of $500.00. For a third and each subsequent conviction, the general penalty provisions of section 5-2-4, "General Penalties," B.R.C. 1981, shall apply.