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HomeMy WebLinkAbout2023-15 A Ordinance Repealing and Reenacting Section 7-3B-8 of the Vail Town Code, Regarding the Regulation of Boots on Motor VehiclesORDINANCE NO.15 SERIES 2023 AN ORDINANCE REPEALING AND REENACTING SECTION 7-313-8 OF THE VAIL TOWN CODE, REGARDING THE REGULATION OF BOOTS ON MOTOR VEHICLES WHEREAS, the Town currently regulates booting in Section 7-313-8 of the Vail Town Code; WHEREAS, pursuant to C.R.S. § 42-5-103, it is a crime for any person, with criminal intent and without the owner's consent, to tamper with a motor vehicle; WHEREAS, pursuant to C.R.S. § 42-4-1210(1), a private property owner may designate specified areas on the private property available for public use only by authorized vehicles, and parking vehicles outside of such areas without permission from the owner is prohibited; WHEREAS, pursuant to C.R.S. § 18-4-504, impermissible parking of vehicles on private property is a trespass; WHEREAS, pursuant to C.R.S. § 42-4-2103, a private property owner may remove or dispose of an abandoned vehicle impermissibly parked on the property; WHEREAS, the Colorado Public Utilities Commission (the "PUC") extensively regulates towing carriers, tow truck operators and vehicle booting companies; and WHEREAS, to promote the health, safety and welfare of its citizens, the Town has the authority to regulate motor vehicle booting. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Section 7-313-8 of the Vail Town Code is hereby repealed in its entirety and reenacted to read as follows: § 7-36-8: BOOTING: (A) For purposes of this Section, the following terms shall have the following meanings: Boot orbooting means to place a wheel immobilization device upon a motor vehicle for the purpose of prohibiting the operation of a motor vehicle. Chief means the Chief of Police or designee. Normal business hours means 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding Town -recognized holidays. 91&2023 IIFILESERVER2019iREDlRECTED$ISBIBBENSIDESKTOPI300TING-0072423 2 4 .DOCX Vehicle booting company means a private corporation, partnership, sole proprietor, limited liability company or other entity in the business of immobilizing a motor vehicle through the use of a boot. (B) License Requirements: 1. No vehicle booting company shall engage in booting without a valid license from the Town. 2. No vehicle booting company shall operate within the Town without first obtaining a permit from the Colorado Public Utilities Commission (the "PUC") pursuant to 4 CCR § 723-6812, as amended. (C) Application: 1. An application for a license shall be made on forms provided by the Town Clerk. There shall be no fee required for the application. 2. Upon receipt of a complete application, the Town Clerk or designee shall forward the application to the Chief, who shall conduct such investigation and criminal background check as is necessary to determine whether: a. The applicant has been convicted of theft or embezzlement, any offense involving the unlawful use, taking or conversion of a vehicle belonging to another person, or a felony; or, if the applicant is a corporation, that its officers, directors and principal stockholders are of good business repute and have not been convicted of theft or embezzlement, a felony or any offense involving the unlawful use, taking or conversion of a vehicle belonging to another person; b. The applicant has received and has currently in force a permit to operate as a vehicle booting company from the Colorado Public Utilities Commission (the "PUC'). C. The applicant has adequate, safe equipment and an adequate recordkeeping system and can otherwise comply with the rules and regulations provided herein; and d. The applicant has public liability and property damage insurance or a surety bond providing coverage of at least one million dollars ($1,000,000) per occurrence. (D) Issuance or Denial: 1. Within fifteen (15) days, the Chief shall recommend, in writing, that the Town Clerk issue or deny the license. The Chief shall state the reasons for a recommendation of denial. 2. The Town Clerk shall then issue the license or deny the license. (E) Suspension or Revocation: The Town Clerk may suspend or revoke a license if the vehicle booting company violates any provision of this Code 2 91WO23 IIFILESERVER2019IREDIRECTED$ISSIBBENSIDESKTOPI800TING-0072423 2 4 .DOCX or provides false information to the Town Clerk or to the Chief in an application for a license. Prior to any suspension or revocation, the Town Clerk shall provide at least ten (10) days' prior written notice to the vehicle booting company. Such notice shall state the grounds for suspension or revocation and shall be mailed by first class U.S. Mail to the vehicle booting company's last known address. The Town Clerk shall consider any response submitted by the vehicle booting company prior to their decision. (F) Renewal: Licenses must be renewed on or before the anniversary date of the license, and requests for renewal shall be accompanied by the renewal fee set by resolution of the Town Council. (G) Equipment: Vehicle booting company vehicles shall be clearly marked with the business name and PUC license number and shall have a blinking amber light on the top of or above the vehicle when engaged in booting operations. (H) Personnel: All employees of a vehicle booting company shall be qualified to participate in booting operations within the Town. Employees shall always have on their person a picture identification card containing: the employee's picture, the employee's name, the employer's name and the license number. Every employee shall wear reflective traffic safety vests while booting. (1) Rates: 1. The Town shall enforce a schedule of reasonable rates and charges consistent with those set forth by the PUC under 4 CCR § 723- 6817(b), as amended. 2. A vehicle booting company shall not charge a boot removal fee higher than seventy-five percent (75%) of the rate allowed by the PUC 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. 3. 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 while the booting operator is still with the vehicle, a "drop charge" shall not be higher than what is established by the PUC. 4. 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 this timeframe may be refuted based on the phone records from the vehicle booting company. 5. A boot applied at the direction of a Town police officer shall only be released at the direction of a Town police officer. 6. A vehicle booting company shall accept payment by cash or by credit card for the boot removal fee. The vehicle booting company shall 3 W&2023 IIFILESERVER2019VREDIRECTED ISBISSENS1DESKTOFWOOTING-0072423 2 4 .DOCX 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. (J) Written Authorization: No vehicle booting company shall commence or originate the booting of a vehicle in the Town without the written consent of the registered owner, legal owner, person in control or other having a legal right to possession of the vehicle, or upon direction from a police officer, except when the owner or person in lawful possession of private property, or their agent, gives written consent to a vehicle booting company to boot a vehicle. A copy of the written consent shall be given to the Police Department upon request. (K) Other Booting Regulations: 1. Vehicle booting companies shall not boot vehicles based on expired license plates. 2. Each vehicle booting company operator shall maintain a daily log of the cars that are booted, by license plate, VIN number if legible, location, date and time, and shall, upon request, provide that log to the Police Department before the end of the business day following the boot of a vehicle during normal business hours. 3. Private parking lots that contain one (1) or more parking spaces and for which the property owner uses vehicle booting for parking enforcement shall have posted a conspicuous sign near each entrance to the parking lot. Such sign shall comply with the Town's sign code, and shall provide notice, with reflective background, that unauthorized vehicles will be booted. 4. After a boot is placed on any vehicle, the vehicle booting company shall: a. Affix a conspicuous and obvious notice to the vehicle that contains the name, address, telephone number and license number of the vehicle booting 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 vehicle booting company, the name and telephone number of the property owner or manager authorizing the boot, the signature of the vehicle booting company operator or designee, a description of the right to request a post -seizure hearing under this Section and the following written statement: "The vehicle was booted by the property owner for a private property parking violation as outlined in Vail Town Code, Section 7-3B-8. The Town of Vail was not involved in the action."; b. 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 Section; C. Accept payment by cash or by credit card; and 4 9/&/2023 IIFILESERVER20191REDlRECTED$ISBIBBENSIDESKTOPWO077NG-0072423 2 4 _DOCX d. Provide a receipt upon payment for removal of the boot, listing the fees and advisement of the right to request a post -seizure hearing for vehicle immobilization pursuant to this Section. 5. Charges for damage to booting equipment shall not be governed by this Section and shall not prevent the vehicle's release if scheduled fees are satisfied. (L) Post -Seizure Hearing: 1. The owner or operator of a previously booted vehicle may request a "post -seizure" hearing by providing a written request to the Town Clerk within ten (10) days of the date the vehicle was booted. 2. The hearing shall be conducted by a hearing officer designated by the Town in the same manner as outlined in Article 3A of Chapter 3 of this Code. The vehicle booting company shall have the burden to establish that there was probable cause to immobilize the vehicle. 3. The hearing officer shall determine whether a violation of this Section occurred. The hearing officer may reverse or reduce any fees charged. (M) Appeals. Any decision of the hearing officer under this Section may be appealed as follows: 1. A written appeal shall be filed with the Town Clerk within ten (10) days of the date of the decision being appealed, including the basis for the appeal. 2. The Town Council shall consider the appeal, on a de novo basis, at a public meeting held within thirty-five (35) days of receipt of the appeal. The decision of the Town Council shall be final, subject only to judicial review. (N) Violation; Penalty. 1. Violation: It is unlawful to violate any provision of this Section. Each day of violation shall be deemed a separate offense. 2. Civil Enforcement: a. If the Town chooses civil enforcement, a citation may be served by posting on the front door of the business in violation, or by personal service on the alleged violator, or by mailing first-class U.S. Mail to the last known address of the alleged violator. b. Civil violations shall be subject to the following fines and penalties: L First violation in any twelve (12) month period: $500. ii. Second violation in any twelve (12) month period: $1,500. 5 9/62023 IIFILESERVER2019U7EDIRECTED$ISBIBBENSIDESKTOPIBOOTING-0072423 2 4 .DOCX iii. Third and subsequent violations in any twelve (12) month period: $2,500, C. All penalties shall be paid within fourteen (14) days of the date of the citation. If the civil violation is paid, there shall be no opportunity to challenge or otherwise appeal the violation. If the violation is contested, a written protest shall be filed with the Town within fourteen (14) days of the date of the citation, and the Town shall cancel the citation and proceed to criminal enforcement. 3. Criminal Enforcement: If the Town chooses criminal enforcement or a protest is filed and the civil citation is canceled, a summons and complaint may be served as provided in the Colorado Municipal Court Rules of Procedure. The penalties shall be as set forth in Section 1-4-1 of this Code. 4. Other Remedies: In addition to the penalties described above, the Town shall have any and all remedies provided by law and in equity for a violation of this Chapter, including without limitation: damages; specific performance; and injunctive relief. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 4. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 15t day of August, 2023 and a public hearing for second reading of this Ordinance set for the 5t' day of September, 2023, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. 6 9/&2023 IIFIL.ESERVER20191RED1RECTED$ISBIBBENSIDESKTOPV300TING-0072423 2 4 .DOCX ATTEST: Stephanig Bibbens, Town Clerk READ AND APPROVED ON S this Wh day of September, 2023. ATTEST: _ M1 Stepha a Bibbens, Town Clerk / 7 R"DJNG AND PUBLISHED 91&2023 IIFILESERVER2019iREDIRECTED$ISBIBBENSIDESKTOP1800TING-0072423 2 4 .DOCX