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TC Ord. No. 2017-03 Amending Avon Municipal Code Sections 5.12.080, 090, 110, and 120 concerning vehicle impoundmentAvon COLORADO TOWN OF AVON, COLORADO ORDINANCE 17-03 AMENDING AVON MUNICIPAL CODE SECTIONS 5.12.080,090, 110, AND 120 CONCERNING VEHICLE IMPOUNDMENT WHEREAS, the Avon Town Council adopted Ordinance No. 09-10 and Ordinance No. 10- 11 which enacted and amended regulations concerning booting of vehicles on private property and the Town of Avon recently reviewed various aspects of existing booting regulations to determine if amendments would improve the effectiveness of booting regulations; and WHEREAS, the use of booting by private parking enforcement companies is not currently regulated by the State of Colorado and the District Attorney for the Fifth Judicial District in the State of Colorado has issued an advisory opinion that booting of a vehicle by a private party without the consent of the vehicle owner constitutes Second Degree Criminal Tampering pursuant to C.R.S. § 18-4-506 and criminal motor vehicle tampering pursuant to C.R.S. §42-5-03; and WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (the "Town"), the Town Council has the power to adopt ordinances for promotion and preservation of public health, safety, and welfare, including the authority to regulate parking enforcement companies that immobilize and boot motor vehicles without the consent of the owner of the motor vehicle within the municipal limits of the Town; and WHEREAS, approval of this Ordinance on First Reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on First Reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this Ordinance. NOW, THERFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Avon Municipal Code Section 5.04.020 Definitions. Avon Municipal Code Sections 5.12.080, 090, 110 and 120 are hereby amended, with strip indicating words which are deleted and underline indicating words which are added, to read as set forth in Exhibit A: Amendments to Avon Municipal Code Sections 5.12.080, 090, 110 and 120, attached hereto. Ord 17-03 Amending Avon Municipal Code Sections 5.12.080, 090, 110, AND 120 Concerning Vehicle Impoundment FINAL — February 28, 2017 Page 1 of 3 Section 3. Codification Amendments. The codifier of the Town's Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty (30) days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Ord 17-03 Amending Avon Municipal Code Sections 5.12.080, 090, 110, AND 120 Concerning Vehicle Impoundment FINAL — February 28, 2017 Page 2 of 3 Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on February 14, 2017 and setting such public hearing for February 28, 2017 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. ATTEST: no Debbie Hoppe, Town Mrk ADOPTED ON SECOND AND FINAL READING on February 28, 2017. B ATTEST: ie Fancher, Mayor Debbie Hoppe, Town Jerk APPROVED AS TO FORM: Eric J. 1 , Town Attorney r AI ., ate �LORAD�' Ord 17-03 Amending Avon Municipal Code Sections 5.12.080, 090, 110, AND 120 Concerning Vehicle Impoundment FINAL — February 28, 2017 Page 3 of 3 EXHIBIT A: AMENDMENTS TO AVON MUNICIPAL CODE SECTIONS 5.12.080,090, 110 AND 120. 5.12.080 - Rules and regulations. The Chief shall, within seven (7) days after the enactment of the ordinance codified in this Chapter, set forth in writing such rules and regulations governing the conduct of wreckers or parking enforcement companies as are deemed necessary to ensure the inhabitants of and other persons within the Town safe, efficient and dependable towing or parking enforcement service. These rules shall include, but not be limited to, the following: (1) Equipment. The Chief shall specify equipment at least the equivalent of that required by the rules and regulations of the Colorado Public Utilities Commission governing towing carriers for wreckers and such other necessary equipment as determined by the Chief. Parking enforcement company vehicles are required to be clearly marked with the business name and Avon license number and must have a blinking amber light on the top of or above the vehicle when engaged in booting operations, and the operators are required to wear reflective traffic safety vests. (2) Records. The Chief shall require sufficient recordkeeping to ensure compliance with the terms of this Chapter and the rules and regulations as promulgated. (3) Personnel. The rules shall specify such steps as are necessary to determine that the operators and employees of the wrecker or parking enforcement company are of good character and otherwise fit to participate in towing or booting operations within the Town, which shall be determined according to the same standards for applicants set forth in Section 5.12.030 above. Employees engaged in parking enforcement shall display a picture identification card containing: the employee's picture, the employee's name, the employer's name and the Avon business license number. (4) Rates. Rates shall be determined by the following procedures and requirements: a. A schedule of reasonable rates to be charged by wreckers operating on the Town's towing list shall be established by the Town Manager, and it is unlawful for any wrecker to charge rates other than as set forth in said schedule whenever such wrecker provides towing service in response to a call from the Police Department. The schedule of rates shall be set forth as a part of the rules and regulations governing wreckers, provided that such rates shall not be less than the permissible rates published by the Public Utilities Commission as may be amended from time to time. The Town Manager shall annually review the rate schedule to determine its adequacy and appropriateness and shall make such changes as he or she deems necessary. In setting or revising rates, the Town Manager shall give consideration to the rates charged for similar services in the County. The rate schedule as set forth in the rules and regulations shall not apply to towing services conducted by a wrecker when his or her services are not rendered as a result of a request by the Police Department. b. A wrecker shall not charge rates higher than what is allowed by the Colorado Public Utilities Commission for nonconsensual tows. A parking enforcement company shall not charge a boot removal fee higher than seventy-five percent (75%) of the rate allowed by the Colorado Public Utilities Commission for the nonconsensual tow of a motor vehicle with a GVWR of less than ten thousand (10,000) pounds when requested to remove the boot. c. If the owner, authorized operator or authorized agent of the owner of a motor vehicle that is parked without the authorization of the property owner attempts to retrieve the motor vehicle Page 1 of 5 Exhibit A - Final while the wrecker or booting operator is still with the vehicle, a "drop charge" shall not be higher than what is established by the Colorado Public Utilities Commission. d. There shall not be any boot removal fee assessed if the boot cannot be removed within ninety (90) minutes from the time of the request for removal by the vehicle owner or vehicle owner's designee. Any dispute regarding the time frame proscribed herein may be refuted based on the phone records for the parking enforcement company. A boot applied at the direction of a Town police officer shall be released at the direction of a Town police officer. e. The parking enforcement company shall accept payment by credit card for the boot removal fee, in addition to accepting payment in cash. The parking enforcement company shall obtain, carry and maintain in working order such portable credit card payment equipment as may be necessary to accept payment by credit card at the location of the placement and removal of a boot. (5) Authority of Chief. The Chief shall from time to time formulate, publish and promulgate such other rules and regulations as are reasonably necessary to effectuate the purpose of this Chapter, including but not limited to the type of security required at the vehicle storage location, the hours during which the vehicle storage location will be open for the redemption of vehicles by their owners, the persons to whom towed vehicles may be released and the procedures to be followed in connection with the release of towed vehicles and the payment of fines, towing fees and storage charges. Any rules and regulations promulgated by the Chief shall not conflict with or materially change any provision of this Chapter. The Chief may initiate a request for proposal and select a designated wrecker service or parking enforcement company to provide service for police -requested impounds. The Chief shall post notice of any proposed rules in the official places of posting notices adopted by the Town, shall post notice on the Town's website and shall mail notice to all licensed wrecking and parking enforcement companies at least twenty (20) days prior to adoption of such proposed rule or regulation by the Chief, and the Chief shall consider all comments received on the proposed rules and regulations prior to taking any action to adopt the proposed rules and regulations. The Chief shall provide written notice of adoption of any rules and regulations to all persons who provide comments in writing, along with a copy of the adopted rules or regulations and a statement that persons with standing (defined as residents, property owners or business owners in Avon) may appeal the decision to adopt the rule or regulation to the Town Council. Any person with standing may appeal the decision of the Chief to adopt a rule or regulation by providing a request to appeal the decision in writing to the Town Clerk within ten (10) days of the date of adoption of the rule or regulation by the Chief. Failure to provide a request (defined as received by the Town) to appeal a rule or regulation adopted by the Chief within ten (10) days shall be deemed a forfeiture and waiver of all rights to appeal such decision to the Town Council. The Town Council shall consider all appeals of the decision of the Chief to adopt a rule or regulation which are properly and timely provided to the Town, and the Town Council's action shall be final. During the pendency of an appeal, the proposed rule or regulation shall not take effect. 5.12.090 - Suspension or revocation—procedure. Upon a showing that a wrecker or parking enforcement company has violated the provisions of this Chapter, a Hearing Officer's order or the rules and regulations provided for in Section 5.12.080 above, the Town Council may suspend for a period of up to six (6) months or revoke the license of any wrecker or Page 2 of 5 Exhibit A - Final parking enforcement company. Prior to taking any action to suspend or revoke a wrecker or parking enforcement company license, the Town shall provide at least ten (10) days' prior written notice to the licensee stating the grounds and allegations for any action to suspend or revoke a license, and the Town Council shall conduct a hearing thereon. Service of the notice shall be by personal service upon the wrecker or parking enforcement company or his or her agent or by certified mail, return receipt requested, sent to the business address of the operator as shown on his or her license. A decision to suspend or revoke the license shall be based on a finding of violation of the provisions of this Chapter, including non-compliance with the minimum requirements in Section 5.12.030, or a finding that the owner, operator or an employee of a parking enforcement company has exhibited a lack of moral character, including but not limited to acts of hostility, intimidation or deceit in the conduct of the parking enforcement company operations; or conviction of a felony. The decision of the Town Council shall be final. 5.12.110 - Written notice of tow/immobilization—rates and hours. (a) Notwithstanding any other provision of this Chapter, a licensed wrecker shall receive a written authorization from the person authorizing a tow prior to the commencement of a tow originating within the Town, which authorization shall list the services offered and the rates and charges required therefor. A copy of such authorization shall be furnished to the person authorizing the tow. Such copy shall list the name, address and telephone number of the wrecker's business and the days and hours the business is open for the release of vehicles. Such copy shall also be signed by the towing vehicle operator performing the authorized service. (b) After a boot is placed on any vehicle, the parking enforcement company shall: (1) Provide a notice affixed to the vehicle in a conspicuous and obvious manner containing the name, address, telephone number and license number of the parking enforcement company that placed the boot on the vehicle, the amount of the boot removal fee, the right to have the boot removed within ninety (90) minutes of contacting the parking enforcement company, the name and telephone number of the property owner or manager authorizing the boot, the signature of the parking enforcement company operator or designee and a description of the right to request a post -seizure hearing under this Chapter; (2) Maintain personnel authorized to remove any boot and release any vehicle to its owner or driver upon the payment of any boot removal fee during such times as required in this Chapter;-aad p(3)Accept payment by cash or by credit card; and L4) Provide a receipt upon payment to the individual making the payment for removal of the boot or release of the vehicle, listing the fees and advisement of the right to request a post -seizure hearing for vehicle immobilization per Section 5.12.120 below. (c) A parking enforcement company or wrecker shall not charge fees in excess of the fees as listed in the fee schedule for booting or towing a vehicle. (d) A parking enforcement company or wrecker shall not charge any fee related to the impoundment of a vehicle that is not listed in the fee schedule. (e) Charges for damages to booting equipment shall not be governed by this Section and shall not prevent the vehicle's release if scheduled fees are satisfied. Damages or loss to parking enforcement equipment will be investigated using other municipal and state statutes related to theft or criminal injury to property. Page 3 of 5 Exhibit A - Final (f) The Town is authorized to audit the fees charged by a parking enforcement company or wrecker licensed to do business in the Town upon reasonable notice and at reasonable times for the purpose of verifying compliance with this Chapter. 5.12.120 - Post -seizure hearing. (a) The owner of a vehicle that has been immobilized pursuant to this Chapter has a right to a "post -seizure" administrative hearing in accordance with this Section to determine whether there was prebable Gayle to ;FnPE) IRR the „ohiple he vehicle owner violated the parking rules and regulations and whether the parking enforcement company complied with all applicable rules and regulations. (1) The owner of a vehicle shall first contact the owner of the property, or owner's agent, by e-mail or other means to request reversal or reduction of the immobilization fee. The parking enforcement company shall provide the e-mail address and telephone number of the property owner or property owner's agent, who shall not be anyone employed by or affiliated with the parking enforcement company. M_The hearing shall be petitioned and conducted in the same manner as outlined in Title 10 of this Code. L3 _94—The parking enforcement company shall have the burden to establish that there was probable cause to impound or immobilize the vehicle. (4�i��The Court shall determine whether a violation of the parking rules and regulations occurred and whether the parking enforcement company complied with all applicable rules and regulations based upon a preponderance of the evidence presented at the hearing. (5L_The losing party sha Tay be assessed a rniRimum hearing Gest of ene h...,r Fed dollar - ($a ee:e0)costs as determined by the municipal court and shaAMay be required to pay for translation services, if used during the hearing. The Hearing Officer has the discretion to waive court costs. (6) The municipal court may reverse or reduce the immobilization fee in the court's discretion depending upon the circumstances. The parking enforcement company shall have five (5) days from the decision of the municipal court to refund any immobilization fee that is reversed or reduced by the municipal court. (b) When a vehicle is immobilized by a parking enforcement company, the vehicle owner or driver shall be informed of his or her right to a post -seizure hearing with the following written statement: "The vehicle was booted by the property owner for a private property parking violation as outlined in Avon Municipal Code, Title 5. The Town of Avon was not involved in the action. The owner or operator of the vehicle may request a hearing by one of the following methods: "(1) By providing a written request to the Municipal Court Clerk for a post -seizure hearing to contest the booting within ten (10) days of the date the vehicle was booted; or "(2) By appearing in person at the Municipal Court within a ten -calendar -day period from the date on which the boot was placed on the vehicle and requesting an initial appearance before a Hearing Officer.,, _ The vehicle owner or operator must first contact the parking lot property owner, or property owner's agent, to request reversal or reduction of the immobilization fee. The parking enforcement Page 4 of 5 Exhibit A - Final company shall provide the e-mail and telephone number for the property owner or property owner's agent. The losing party may be assessed hearing costs as determined by the municipal court. The immobilization fee may be reduced or reversed in its entirety by the municipal court" Page 5 of 5 Exhibit A - Final