The information in this blog is not intended to be legal advice. Postings are for informational purposes only and cannot replace specific legal advice from an attorney.

Tuesday, October 26, 2010

Vroom! Vroom! City Ordinances, Golf Carts, Scooters & Mini-Trucks





These days residents have many options for getting around town. With all the motorized scooters, mini-trucks, mini-bikes, golf carts and ATVs on the market, some might worry that city streets are starting to look a little crowded. Cities have authority to regulate many of these new vehicles and decide whether or not to allow them on city streets.

Proponents of mini-vehicles and golf carts often stress improving accessibility and mobility for their users. The US Department of Transportation has put together an extremely comprehensive document on the problems facing seniors and the disabled in maintaining mobility. Golf carts as a potential solution are discussed at page 355 at this link: http://goo.gl/MMC0

In addition, many supporters of mini-vehicles highlight their fuel efficiency and the environmental benefits of their use. Some of these issues were discussed in depth at a recent city of Duluth council meeting at this link: http://goo.gl/waWe

The type of regulation city ordinance may impose depends on the type of vehicle. Cities must permit some use of some types of motorized vehicles on city streets and may permit some others by passing a local ordinance. For some types of vehicles, state statute sets specific ordinance criteria.

Vehicles the City Must Allow:

Cities must allow motorized wheelchair operation, including scooters, tricycles and similar devices used by a disabled person for mobility purposes. Minn. Stat. § 169.212 permits these devices to be operated anywhere a pedestrian may walk and on streets with a speed under 35 mph where a sidewalk is not available or unsafe. Cities may authorize and regulate the use of motorized mobility devices on city streets that have a speed higher than 35 mph by ordinance.

Cities must also allow motorized foot scooters commonly used by teens and children for recreation on city streets. Riders must comply with state requirements for safety at Minn. Stat. § 169.225 and cannot ride on sidewalks. Cities can prohibit the motorized scooters on trails designated for foot traffic only.

Vehicles That May Be Authorized by Local Ordinance:

Cities may authorize and regulate the use of golf carts, smaller ATVs and mini-trucks on city streets. Cities must adopt an ordinance to regulate these vehicles. Without a local ordinance, these vehicles are not permitted on city streets.

When adopting an ordinance permitting one or all of these vehicles, it is important to know that state statute sets criteria that must be in the ordinance. For example, local ordinance must require golf carts operating on streets to display a slow moving vehicle emblem. In addition, cities must require insurance on all three types of vehicles.

These statutory requirements can be found at Minn. Stat. § 169.045. In addition, LMC has a model ordinance for these vehicles that meets the state law requirements. This model ordinance can be found in the Appendix of the LMC memo “Special Vehicles Operating on City Streets” at this link: http://www.lmc.org/media/document/1/special_vehicles.pdf

Finally, it is important to note that city ordinance will only apply to city streets. State and county streets will continue to be governed by regulations adopted by those governing bodies.

Conclusion:

Additional in-depth help on researching this topic can be found in the LMC memo “Special Vehicles Operating on City Streets” mentioned above. Since the many types of vehicles available and terminology to describe them can be confusing, the LMC memo includes pictures for ease of reference. Minnesota House Research also has a helpful memo titled “Motorized Scooters and Other Low-Power Vehicles” at: http://www.house.leg.state.mn.us/hrd/pubs/scooter.pdf

Photo courtesy of the National Archives on Flickr at: http://www.flickr.com/photos/nationaalarchief/4192749411/sizes/s/in/photostream/

Monday, October 18, 2010

Ordinance Language for Inspections & the Fourth Amendment




Often I see language related to entry onto and inspection of private property in city ordinances. For example:

The authorized employees of the City, bearing proper credentials and identification, shall be permitted to enter all properties for the purpose of inspection, observations, measurement, sampling, and testing.

Another recent example I have found states:

Animal Control Officers shall not enter the private dwelling of an individual for purposes of seizing animals or otherwise enforcing the provisions of this Chapter without first obtaining a search warrant. However, an Animal Control Officer is empowered to enter upon a property adjacent to a private dwelling for purposes of enforcing the provisions of this Chapter.

It’s important to stress that such language is not directly contrary to law. However, in practice, when such language is utilized by city staff to actually obtain entry to private property - problems may occur in some fact situations.

Administrative Inspections and the Fourth Amendment

This type of inspection language may create a false sense of security for staff that all entries onto private property are permitted by city ordinance. Of particular concern are non-public safety staff that perform inspections less frequently than police officers. For example, a city clerk trying to draft a warning letter for nuisances (garbage) on private property.

It is important to remember that even “administrative searches are significant intrusions upon the interests protected by the Fourth Amendment.” (See Camara v. Municipal Court, 387 523 (1967). The US Constitution Fourth Amendment prohibits unreasonable searches and seizures of persons or property without a search warrant.

There are some important exceptions to this blanket rule (discussed below). Generally, however, under the US Constitution, persons are promised a “reasonable expectation of privacy.” (See Katz v U.S., 389 US 347, 360 (1967). City ordinance provisions cannot and do not override these provisions.

A person’s protections under the Fourth Amendment apply as soon as a city inspector enters what is known as the “curtilage” of the person’s property. The curtilage, historically, is defined as the area adjacent to a person’s house where “intimate activities associated with domestic life and the privacies of the home” take place. Similar protections apply to businesses. (See Boyd v. United States, 116 US 616 (1886); United States v Oliver, 466 US 170, 1984; Dunn v U.S., 480 US 294 (1987).

As a result, generally, when city staff must enter private property to enforce an ordinance or perform an inspection one of the following is needed:

1) Permission or voluntary consent from an appropriate person; OR
2) An administrative warrant issued by a court with jurisdiction.

When entering a property with consent, it is important to obtain consent from the right person. Consent should not be obtained from minor children or guests. Consent should be obtained from the person “in control of the property” – this could be a renter or owner, depending on the fact circumstances. If possible, consent should be obtained in writing.

City staff may enter onto private property without consent or a warrant only in very limited circumstances:

1) Emergencies; and
2) To inspect heavily regulated industries (liquor dealers, firearms dealers, junkyards)

Consequences for Fourth Amendment Violations

Entering onto private property in violation of the US Constitution’s Fourth Amendment may give rise to legal claims against the city. Sometimes such claims are brought under the Federal Civil Rights Act – also called “1983 Claims.” Civil Rights Act claims can be costly for a city, as they are not subject to state tort law liability limits and may involve the award of attorneys fees to prevailing parties (these can be significant and more costly than the damages award).

Conclusion

Portions of this entry were “borrowed” with permission from the LMC Administrative Searches and Seizures packet. If you would like to obtain a full copy of the packet, please email me at rcarlson@lmc.org.

Picture provided by: http://www.publicdomainpictures.net/view-image.php?image=8475&picture=board-window-grunge

Monday, October 11, 2010

5,000 Clicks! Thanks for Reading!

After just a few months of being up and running -the LMC Codification Blog has hit 5,000 clicks!  So its time to say "thanks!" for reading!  thanks for commenting! As always, if you have any questions or concerns about the blog contact me at rcarlson@lmc.org.  Often when I write about a subject, I have more sample ordinances than I can post.  The easiest way to get these is through a quick email.  Finally, if you're interested in reading about a specific topic - or have an ordinance problem that keeps cropping up - please let me know.  I'm always looking for topic suggestions and constructive feeback.

Picture provided by http://www.publicdomainpictures.net/view-image.php?image=1816&picture=keyboard

Friday, October 1, 2010

City Ordinances on Feeding Wild Animals

Some nuisances are easy to spot – they are as large as the rusting car in the neighbor’s front yard. Some nuisances are a little harder to define and their far-reaching effects more difficult to explain. A nuisance of this type that cities often struggle with is the feeding of wild animals or strays.

Problems Associated with Unattended Feeding:

Feeding of wild animals in rural areas is a common practice. However, in urban areas with smaller lots, the activity can quickly become a nuisance that cities wish to regulate. Feed left out for “desirable animals” such as stray (or feral) cats, dogs and deer also may attract the following:

1) Rats;
2) Raccoons;
3) Skunks;
4) Coyotes (who do not attack humans, but may attack small cats and dogs);
5) Bears (on occasion depending on locale).

It is important to note that even “desirable animals” for whom the proffered food is intended may become nuisances in large numbers. Deer can quickly ruin neighboring lawns, trees and gardens. Stray cats who linger nearby for food left outside can quickly multiply.

Attracting wild animals to a neighborhood can create some obvious problems, such as property damage (for example, raccoons tearing apart garbage), increased risk of attack (even wild turkeys may become aggressive during breeding season) and disease (for example, rabies and the roundworm parasites carried by raccoons http://www.dnr.state.mn.us/livingwith_wildlife/raccoons/index.html).

However, some less obvious problems with feeding wild animals can be just as problematic. Feeding can alter normal patterns of movement and congregation among animals. The more food, the denser the congregation of animals looking to eat becomes. This can spread disease among the animals and cause reproduction rates to skyrocket. Becoming too used to humans may make animals more susceptible to harm.

City Authority to Regulate Feedings & Sample Language:

Cities are specifically authorized to regulate the keeping of animals at Minn. Stat. § 412.221 Subd 21. Cities can and have adopted ordinances limiting feeding of wild animals. The City of Coon Rapids was recently in the news for its new ordinance (See http://tinyurl.com/29s39b3)

Here are some sources for sample ordinances from Minnesota cities on feeding wild and stray animals:

• City of Arden Hills, Chapter 4, Section 420.10: http://tinyurl.com/24gb4vt

• City of Madelia, Chapter 9, Section 92.110 http://www.madeliamn.com/Ordinance/26.php#JD_92.080

• Minnesota Basic Code Chapter 9, Section 91.19: http://tinyurl.com/2ew79fz

Some cities merely regulate the feeding of certain types of wild animals such as deer or waterfowl. For example:

Hermantown City Code, Chapter 6, Section 640.06 Feeding Wild Bears Prohibited. No person shall intentionally feed or attempt to feed a wild bear within the city. No person shall place any feed for any wild animal out of doors if a bear has been attracted to the feeding source.

Conclusion:

Often people leaving food out for animals do not understand the far-reaching effects of their actions. Some cities supplement their ordinance provisions with educational materials. For example, the City of Minnetonka posted this online information about wild turkeys: http://www.eminnetonka.com/news.cfm?story_id=WildTurkeys201009. Cities wishing to develop educational efforts about the problems with feeding wild animals may also like to review the DNR’s extensive materials on this subject. The DNR materials offer detailed information on numerous animal types and are available at this link: http://www.dnr.state.mn.us/livingwith_wildlife/index.html

Picture provided by: http://www.publicdomainpictures.net/view-image.php?image=3145&picture=doe-on-golf-course