Revision: July 30, 2009, midnight
HB 86 – VERSION ADOPTED BY BOTH BODIES
18Feb2009… 0004h
05/06/09 1459s
10Jun2009… 2087eba
2009 SESSION
10/03
HOUSE BILL 86
AN ACT allowing towns to issues citations and accept pleas by mail for local ordinance violations.
COMMITTEE: Municipal and County Government
This bill allows municipalities to enforce municipal codes and ordinances by issuing citations and accepting pleas by mail for violations.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18Feb2009… 0004h
05/06/09 1459s
10Jun2009… 2087eba
09-0107
10/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT allowing towns to issues citations and accept pleas by mail for local ordinance violations.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Sections; Powers of Towns; Enforcement of Ordinances. Amend RSA 31 by inserting after section 39-b the following new sections:
31:39-c Administrative Enforcement of Ordinances. Notwithstanding any other provision of law, a town may use the following provisions in the enforcement of its ordinances and regulations:
I. Any town may establish, by ordinance adopted by the legislative body, a system for the administrative enforcement of violations of any municipal code, ordinance, bylaw, or regulation and for the collection of penalties, to be used prior to the service of a formal summons and complaint. Such a system may be administered by a police department or other municipal agency. The system may include opportunities for persons who do not wish to contest violations to pay such penalties by mail. The system may also provide for a schedule of enhanced penalties the longer such penalties remain unpaid; provided, however, that the penalty for any separate offense shall in no case exceed the maximum penalty for a violation as set forth in RSA 31:39, III.
II. A written notice of violation containing a description of the offense and any applicable schedule of penalties, delivered in person or by first-class mail to the last-known address of the offender, shall be deemed adequate service of process for purposes of any administrative enforcement system established under paragraph I.
III. If the administrative enforcement system established under paragraph I is unsuccessful at resolving alleged violations, or in the case of a town that has not established such a system, a summons may be issued as otherwise provided by law, including use of the procedure for plea by mail set forth in RSA 31:39-d.
31:39-d Local Ordinance Citations; Pleas by Mail. In addition to any other enforcement procedure authorized by law, and regardless of whether a town has adopted an administrative enforcement procedure under RSA 31:39-c, a local official with authority to prosecute an offense under any municipal code, ordinance, bylaw, or regulation, if such offense is classified as a violation under applicable law, may issue and serve upon the defendant, in addition to a summons to appear in the district court, a local ordinance citation as set forth in this section. The defendant receiving such a citation may plead guilty or nolo contendere by mail by entering that plea as provided herein. If such a plea is accepted by the district court and the prescribed fine is paid with the plea by mail, the defendant shall not be required to appear personally or by counsel; otherwise the defendant shall appear as directed by the court. The following procedure shall be used:
I. Notwithstanding any other provision of law, a complaint and summons may be served upon the defendant by postpaid certified mail, return receipt requested. Return receipt showing that the defendant has received the complaint and summons shall constitute an essential part of the service. If service cannot be effected by certified mail, then the court may direct that service on the defendant be completed as in other violation complaints.
II. The local ordinance citation shall contain:
(a) The caption: “Local Ordinance Citation, Town (City) of _________________”.
(b) The name of the offender, and address if known to the prosecuting official.
(c) The code, ordinance, bylaw, or regulation the offender is charged with violating.
(d) The act or circumstances constituting the violation.
(e) The place of the violation.
(f) The date, if any, upon which the offender received written notice of the violation by the municipality.
(g) The time and date, if any, upon which any further violation or continuing violation was witnessed subsequent to such written notice.
(h) The amount of the penalty that is payable by the offender. If the offense is a continuing one for which a penalty is assessed for each day the offense continues, the amount of the penalty shall be based on the number of days the violation has continued since the time notice was given to the offender, up to a maximum of 10 days’ violation charged in one citation.
(i) Instructions informing the defendant that the defendant may answer the citation by mail or may personally appear in court upon the date on the summons, and instructing the defendant how to enter a plea by mail, together with either the amount of the penalty specified in the citation, or a request for a trial.
(j) The address of the clerk of the district court where the plea by mail may be entered.
(k) A warning to the defendant that failure to respond to the citation on or before the date on the summons may result in the defendant’s arrest as provided in paragraph V.
(l) The signature of the prosecuting official.
III. Defendants who are issued a summons and local ordinance citation and who wish to plead guilty or nolo contendere shall enter their plea on the summons and return it with payment of the civil penalty, as set forth in the citation, to the clerk of the court prior to the arraignment date, or shall appear in court on the date of arraignment.
IV. Civil penalties collected by the district court under this section shall be remitted to the municipality issuing the citation. Whenever a defendant (a) does not enter a plea by mail prior to the arraignment day and does not appear personally or by counsel on or before that date or move for a continuance; or (b) otherwise fails to appear for a scheduled court appearance in connection with a summons for any offense, the defendant shall be defaulted and the court shall determine what the civil penalty would be upon a plea of guilty or nolo contendere and shall impose an administrative processing fee in addition to the civil penalty. Such fee shall be the same as the administrative processing fee under RSA 502-A:19-b, and shall be retained by the court for the benefit of the state.
V. The court may, in its discretion, issue a bench warrant for the arrest of any defendant who:
(a) Is defaulted in accordance with the provisions of paragraph IV of this section;
(b) Fails to pay a fine or other penalty imposed in connection with a conviction for a violation of a local code, ordinance, bylaw, or regulation which a court has determined the defendant is able to pay, or issues a bad check in payment of a fine or other penalty; or
(c) Fails to comply with a similar order on any matter within the court’s discretion.
VI. For cause, the court in its discretion may refuse to accept a plea by mail and may impose a fine or penalty other than that stated in the local ordinance citation. The court may order the defendant to appear personally in court for the disposition of the defendant’s case.
VII. The prosecuting official may serve additional local ordinance citations, without giving additional written notice or appeal opportunity under paragraph I, if the facts or circumstances constituting the violation continue beyond the date or dates of any prior citation. A plea of guilty or nolo contendere to the prior citation shall not affect the rights of the defendant with respect to a subsequent citation.
VIII. Forms and rules for the local ordinance citation and summons shall be developed and adopted by the New Hampshire supreme court.
IX. This section is not intended in any way to abrogate other enforcement actions or remedies in the district or superior court, nor to require written notice as a prerequisite to other types of actions or remedies for violations of local codes, ordinances, bylaws, or regulations.
X. This section shall not apply to offenses that are subject to enforcement under RSA 676, or to motor vehicle offenses under title XXI or any local law enacted thereunder.
2 Powers of City Councils; Bylaws and Ordinances. Amend the introductory paragraph of RSA 47:17 to read as follows:
47:17 Bylaws and Ordinances. The city councils shall have power to make all such salutary and needful bylaws as towns and the police officers of towns and engineers or firewards by law have power to make and to annex penalties, not exceeding $1,000, for the breach thereof; and may make, establish, publish, alter, modify, amend and repeal ordinances, rules, regulations, and bylaws for the [following] purposes stated in this section. Provisions in this section granting authority to establish and collect fines for certain violations shall not be interpreted to limit the authority hereunder to establish and collect fines for any other violations:
3 Powers of City Councils; Bylaws and Ordinances; Nuisances; Garbage. Amend RSA 47:17, XIV to read as follows:
XIV. NUISANCES. To abate and remove nuisances; to regulate the location and construction of slaughterhouses, tallow chandlers’ shops, soap factories, tanneries, stables, barns, privies, sewers, and other unwholesome or nauseous buildings or places, and the abatement, removal or purification of the same by the owner or occupant; to prohibit any person from bringing, depositing, or having within the city any dead carcass or other unwholesome substance; to provide for the removal or destruction, by any person who shall have the same upon or near such person’s premises, of any such substance, or any putrid or unsound beef, pork, fish, hides, or skins, and, on such person’s default, to authorize the removal or destruction thereof by some officer of the city; to authorize and provide for the collection, removal, and destruction of garbage and other waste material, to make necessary regulations relative thereto, and to provide for payment therefor by assessment, or appropriation, or both. A municipality may create fines for violations related to garbage and other waste material regulations and a procedure for the administrative enforcement of such violations and collection of penalties as provided in RSA 48-A:8, VI, or in any other manner authorized by law.
4 New Section; Powers of City Councils; Bylaws and Ordinances; Enforcement. Amend RSA 47 by inserting after section 17-a the following new section:
47:17-b Enforcement of Bylaws and Ordinances. In addition to any other enforcement procedure authorized by law, any city code, ordinance, bylaw, or regulation may be enforced pursuant to the procedures established in RSA 31:39-c, RSA 31:39-d, or both, subject to the provisions and limitations thereof.
5 New Paragraph; Housing Standards; Ordinances, Codes, or Bylaws; Penalties for Violations. Amend RSA 48-A:8, IV and V to read as follows:
IV. To appoint and fix the duties of such officers, agents and employees as deemed necessary to carry out the purposes of such ordinance, code or bylaw; [and]
V. To delegate any of its functions under such ordinance to such officers as it may designate[.]; and
VI. To establish penalties for violations of such ordinance, code, or bylaw, which shall be in addition to any other remedies provided under this chapter. The penalty for any separate offense shall not exceed the maximum penalty permitted under RSA 47:17, and may be enforced pursuant to the procedure established in RSA 31:39-c, RSA 31:39-d, or both, subject to the provisions and limitations thereof, or in any other manner authorized by law. For purposes of any fines imposed hereunder, each day that a violation of the ordinance, code, or bylaw continues shall be considered a separate offense.
6 Effective Date. This act shall take effect January 1, 2010.
LBAO
09-0107
Amended 04/15/09
HB 86 FISCAL NOTE
AN ACT allowing towns to issues citations and accept pleas by mail for local ordinance violations.
FISCAL IMPACT:
The New Hampshire Municipal Association states this bill, as amended by the House (Amendment #2009-0004h), will decrease local expenditures and increase local revenues by an indeterminable amount in FY 2010 and each year thereafter. The Judicial Branch states this bill will have an indeterminable fiscal impact on state revenues and expenditures in FY 2010 and each year thereafter. This bill will have no fiscal impact on county revenues or expenditures.
METHODOLOGY:
This bill allows towns to issue citations and accept pleas by mail for local ordinance violations. The New Hampshire Municipal Association states the proposed legislation will decrease local expenditures by an indeterminable amount by enabling municipalities to collect some fines without the necessity of hiring legal council or paying police officers to appear in court. The Association also states the proposed legislation will increase local revenues by an indeterminable amount as it will enable municipalities to pursue collection of fines that otherwise would not have been pursued due to legal costs.
The Judicial Branch states that some courts already accept pleas by mail for local ordinance violations, thereby diminishing any fiscal impact the proposed legislation may have on state revenues or expenditures to an indiscernible amount. The Branch also has no information on how many more individuals charged with these violations would avail themselves of the plea by mail procedure and therefore states the fiscal impact is indeterminable.