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TC Ord. No. 2010-09 Amending Section 9.12.080a of the Avon Muni CodeTOWN OF AVON, COLORADO ORDINANCE NO. 10 -09 SERIES OF 2010 AN ORDINANCE AMENDING SECTION 9.12.080(a) OF THE AVON MUNICIPAL CODE 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 ( "Town "), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, Articles 47 and 48, Title 12, of the Colorado Revised Statutes, the consumption of alcohol on streets, alleys, public parks, public places, and public buildings is not lawful except pursuant to limited circumstances and C.R.S. §12 -47 -904 establishes an affirmative duty of police officers to enforce the liquor code; and WHEREAS, the Town Council finds that enacting regulations concerning the proper use of parks and special event areas and providing penalties for violation of those regulations will enhance the community's ability to enjoy the Town's recreational opportunities and therefore the Town Council finds that passage of this Ordinance will promote and preserve the health, safety, and welfare of the Avon community. NOW, THEREFORE, 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. Section 9.12.080(a) of the Avon Municipal Code is hereby amended by repealing Section 9.12.080(a) in its entirety and re- enacting Section 9.12.080(a) to read as follows: "(a) It is unlawful for any person to consume any malt, vinous or spirituous liquors or fermented malt beverages upon any street, alley, sidewalk, park, public property, public building or public parking lot in the Town or in any vehicle upon such places unless (1) a special events permit has been issued pursuant. to Article 48, Title 12, Colorado Revised Statutes or (2) such person is a member or guest of a qualifying organization which has obtained a picnic event permit from the Town and which event meets the qualifications for exemption from special event permits pursuant'to C.R.S. §12 -48 -108, except that the consumption of spirituous liquors shall not be permitted by any person at an event which meets the qualifications for exemption from special event permits pursuant to C.R.S. §12- 48- 108." Ord 10 -09 Repealing 3.2 in Parks 5 -5 -10 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 seven days after public notice following 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 10 -09 Repealing 3.2 in Parks 5 -5 -10 Page 2 of 3 Section 8. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for May 25, 2010 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on May 11, 201 Published by postin Clerk at least seven ATTEST: �� 3 NOF AVp L at* lq,astjba -g I Ronald C. Wolfe, Mayor #blic places in Town and posting at the office of the Town action by the Town Council. APPROVED AS TO FORM: r-El rk Eric Heil, Town Attorney Published by posting by title office of the Town Clerk. ATTEST: D, AND PASSED ON SECOND READING, AND ,�O F$ May 25, 2010. ald C. Wolfe, Mayor i •. r1� ©� "ee public places in Town and posting by title at the Ord 10 -09 Repealing 3.2 in Parks 5 -5 -10 Page 3 of 3 HEIL LAW & PLANNINC, LLC ih,UU,101:T_1`I Bill J,I TO: Honorable Mayor Wolfe and Town Council members CC: Larry Brooks, Town Manager FROM: Eric Heil, Town Attorney DATE: May 19, 2010 SUBJECT: Ordinance No. 10 -09 Repealing Allowance of 3.2 Beer in Nottingham Park Summary: The Colorado Liquor Code does not allow the consumption of alcohol in public parks or other public places unless a liquor license has been issued or the exemptions for special event permits apply. Ordinance No. 10 -09 amends section 9.12.080(a) of the Avon Municipal Code to comply with the Colorado Liquor Code. The primary purpose for amending the Municipal Code is because the Colorado Liquor Code places an affirmative duty on police officers to enforce the Colorado Liquor Code. Avon, as a home rule community, cannot supersede the Colorado Liquor Code. The inconsistency between the Municipal Code and Colorado Liquor Code creates potential conflicts for Avon police officers as well as conflicts for enforcement of the Municipal Code in municipal court. As proposed, the revisions would allow the consumption of alcohol in public parks only under the following circumstances: 1. A Picnic Event Permit is issued by the Town. 2. The alcohol is provided without charge (i.e. served for free). 3. The alcohol is consumed by members and guests of organizations qualified to obtain a special event liquor license (governmental and non - profit organizations). 4. The consumption of beer and wine is allowed but not spirits. Special Event Permit liquor licenses would not be affected by this ordinance. The relevant state statutes reprinted for your convenience as follows: 12 -47 -901. Unlawful Acts - Exceptions (1) Except as provided in section 18 -13 -122, C.R.S., it is unlawful for any person: (h) (I) To consume malt, vinous, or spirituous liquor in any public place except on any licensed premises permitted under this article to sell such liquor by the drink for consumption thereon; to consume any alcohol beverage upon any premises licensed to sell liquor for consumption on the licensed premises, the Hell law & Planning, LLC Eric Hell, Esq., A.I.C.P. 1499 Blake Street, Unit 1 -G Tel: 303.975.6120 Denver, CO 80202 eheil @ovon.org Avon Town Council RE: Ord. 10 -09 May 19, 2010 Page 2 of 2 sale of which is not authorized by the state licensing authority; to consume alcohol beverages at any time on such premises other than such alcohol beverage as is purchased from such establishment; or to consume alcohol beverages in any public room on such premises during such hours as the sale of such beverage is prohibited under this article. 12 -47 -904. Duties of inspectors and police officers (2) It is the duty of all sheriffs and police officers to enforce the provisions of this article and articles 46 and 48 of this title and the rules and regulations made pursuant to said articles and to arrest and complain against any person violating any of the provisions of this article or rules and regulations pertaining thereto. It is the duty of the district attorney of the respective judicial districts of this state to prosecute all violations of said articles in the manner and form as is now provided by law for the prosecution of crimes and misdemeanors, and it is a violation of said articles for any such person, knowingly, to fail to perform any duties pursuant to this section. 12 -48 -102. Qualifications of organizations for permit - qualifications of municipalities or municipalities owning arts facilities - qualifications of candidates (1) A special event permit issued under this article may be issued to an organization, whether or not presently licensed under articles 46 and 47 of this title, which has been incorporated under the laws of this state for purposes of a social, fraternal, patriotic, political, or athletic nature, and not for pecuniary gain, or which is a regularly chartered branch, lodge, or chapter of a national organization or society organized for such purposes and being nonprofit in nature, or which is a regularly established religious or philanthropic institution, and to any political candidate who has filed the necessary reports and statements with the secretary of state pursuant to article 45 of title 1, C.R.S. (2) A special event permit may be issued to any municipality owning arts facilities at which productions or performances of an artistic or cultural nature are presented for use at such facilities, subject to the provisions of this article. 12 -48 -108. Exemptions An organization otherwise qualifying under section 12 -48 -102 shall be exempt from the provisions of this article and shall be deemed to be dispensing gratuitously and not to be selling fermented malt beverages or malt, spirituous, or vinous liquors when it serves, by the drink, fermented malt beverages or malt, spirituous, or vinous liquors to its members and their guests at a private function held by such organization on unlicensed premises so long as any admission or other charge, if any, required to be paid or given by any such member as a condition to entry or participation in the event is uniform as to all without regard to whether or not a member or such member's guest consumes or does not consume such beverages or liquors. Requested Action: Approval of first reading of Ordinance No. 10 -09 AN ORDINANCE AMENDING SECTION 9.12.080(a) OF THE AVON MUNICIPAL CODE HEIL LAW & PLANNING, LLC • MEMORANDUM TO: Honorable Mayor Wolfe and Town Council members CC: Larry Brooks, Town Manager FROM: Eric Heil, Town Attorney DATE: June 7, 2010 SUBJECT: Ordinance No. 10 -09 Repealing Allowance of 3.2 Beer in Nottingham Park Summary: The Colorado Liquor Code does not allow the consumption of alcohol in public parks or other public places unless a liquor license has been issued or the exemptions for special event permits apply. Ordinance No. 10 -09 amends section 9.12.080(a) of the Avon Municipal Code to comply with the Colorado Liquor Code. The primary purpose for amending the Municipal Code is because the Colorado Liquor Code places an affirmative duty on police officers to enforce the Colorado Liquor Code. Avon, as a home rule community, cannot supersede the Colorado Liquor Code. The inconsistency between the Municipal Code and Colorado Liquor Code creates potential conflicts for Avon police officers as well as conflicts for enforcement of the Municipal • Code in municipal court. As proposed, the revisions would allow the consumption of alcohol in public parks only under the following circumstances: A Picnic Event Permit is issued by the Town. 2. The alcohol is provided without charge (i.e. served for free). 3. The alcohol is consumed by members and guests of organizations qualified to obtain a special event liquor license (governmental and non - profit organizations). 4. The consumption of beer and wine is allowed but not spirits. Special Event Permit liquor licenses would not be affected by this ordinance. The relevant state statutes reprinted for your convenience as follows: 12 -47 -901. Unlawful Acts - Exceptions (1) Except as provided in section 18 -13 -122, C.R.S., it is unlawful for any person: (h) (I) To consume malt, vinous, or spirituous liquor in any public place except on any licensed premises • permitted under this article to sell such liquor by the drink for consumption thereon; to consume any alcohol beverage upon any premises licensed to sell liquor for consumption on the licensed premises, the Heil Law & Planning, «C Eric Heil, Esq., A.I.C.P. 1499 Blake Street, Unit 1 -G Tel: 303.975.6120 Denver, CO 80202 eheil @avon.org Avon Town Council RE: Ord. 10 -09 May 7, 2010 Page 2 of 2 sale of which is not authorized by the state licensing authority; to consume alcohol beverages at any time • on such premises other than such alcohol beverage as is purchased from such establishment; or to consume alcohol beverages in any public room on such premises during such hours as the sale of such beverage is prohibited under this article. 12 -47 -904. Duties of inspectors and police officers (2) It is the duty of all sheriffs and police officers to enforce the provisions of this article and articles 46 and 48 of this title and the rules and regulations made pursuant to said articles and to arrest and complain against any person violating any of the provisions of this article or rules and regulations pertaining thereto. It is the duty of the district attorney of the respective judicial districts of this state to prosecute all violations of said articles in the manner and form as is now provided by law for the prosecution of crimes and misdemeanors, and it is a violation of said articles for any such person, knowingly, to fail to perform any duties pursuant to this section. 12 -48 -102. Qualifications of organizations for permit - qualifications of municipalities or municipalities owning arts facilities - qualifications of candidates (1) A special event permit issued under this article may be issued to an organization, whether or not presently licensed under articles 46 and 47 of this title, which has been incorporated under the laws of this state for purposes of a social, fraternal, patriotic, political, or athletic nature, and not for pecuniary gain, or which is a regularly chartered branch, lodge, or chapter of a national organization or society organized for such purposes and being nonprofit in nature, or which is a regularly established religious or philanthropic institution, and to any political candidate who has filed the necessary reports and statements with the secretary of state pursuant to article 45 of title 1, C.R.S. • (2) A special event permit may be issued to any municipality owning arts facilities at which productions or performances of an artistic or cultural nature are presented for use at such facilities, subject to the provisions of this article. 12 -48 -108. Exemptions An organization otherwise qualifying under section 12 -48 -102 shall be exempt from the provisions of this article and shall be deemed to be dispensing gratuitously and not to be selling fermented malt beverages or malt, spirituous, or vinous liquors when it serves, by the drink, fermented malt beverages or malt, spirituous, or vinous liquors to its members and their guests at a private function held by such organization on unlicensed premises so long as any admission or other charge, if any, required to be paid or given by any such member as a condition to entry or participation in the event is uniform as to all without regard to whether or not a member or such member's guest consumes or does not consume such beverages or liquors. Requested Action: Approval of first reading of Ordinance No. 10 -09 AN ORDINANCE AMENDING SECTION 9.12.080(a) OF THE AVON MUNICIPAL CODE • • TOWN OF AVON, COLORADO ORDINANCE NO. 10 -09 SERIES OF 2010 AN ORDINANCE AMENDING SECTION 9.12.080(a) OF THE AVON MUNICIPAL CODE 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 ( "Town "), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, Articles 47 and 48, Title 12, of the Colorado Revised Statutes, the consumption of alcohol on streets, alleys, public parks, public places, and public buildings is not lawful except pursuant to limited circumstances and C.R.S. §12 -47 -904 establishes an affirmative duty of police officers to enforce the liquor code; and WHEREAS, the Town Council finds that enacting regulations concerning the proper use of parks and special event areas and providing penalties for violation of those regulations will enhance the community's ability to enjoy the Town's recreational opportunities and therefore the Town Council finds that passage of this Ordinance will promote and preserve the health, safety, and welfare of the Avon community. • NOW, THEREFORE, 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. Section 9.12.080(a) of the Avon Municipal Code is hereby amended by repealing Section 9.12.080(a) in its entirety and re- enacting Section 9.12.080(a) to read as follows: "(a) It is unlawful for any person to consume any malt, vinous or spirituous liquors or fermented malt beverages upon any street, alley, sidewalk, park, public property, public building or public parking lot in the Town or in any vehicle upon such places unless (1) a special events permit has been issued pursuant to Article 48, Title 12, Colorado Revised Statutes or (2) such person is a member or guest of a qualifying organization which has obtained a picnic event permit from the Town and which event meets the qualifications for exemption from special event permits pursuant to C.R.S. §12 -48 -108, except that the consumption of spirituous liquors shall not be permitted by any person at an event which meets the qualifications for exemption from special event permits pursuant to C.R.S. §12- 48- 108." is Ord 10 -09 Repealing 3.2 in Parks 5 -5 -10 p g 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 seven days after public notice following 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 10 -09 Repealing 3.2 in Parks 5 -5 -10 Page 2 of 3 • • Section 8. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for May 25, 2010 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on May 11, 2010. Ronald C. Wolfe, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least seven days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: • Patty McKenny, Town Clerk Eric Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on May 25, 2010. Ronald C. Wolfe, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: Patty McKenny, Town Clerk • Ord 10 -09 Repealing 3.2 in Parks 5 -5 -10 Page 3 of 3