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HomeMy WebLinkAboutAmending 14 Adding New Article 3 Prohibition of Open Alcoholic Beverage Containers ORDINANCE No. 8206-91 Passed by the Common Council of the City of South Bend, Indiana- August 26, 91 19 Attest: City Clerk IRENE K. GAMMON Attest: • • _ President of Common Council Presented by me to the Mayor of the City of South Bend, Indiana_ August 27, 91 19 City Clerk IRENE K. GAMMON Approved and signed by me 6 l c X19 91 b" 0447 Mayor Substitute Bill No. 51-91 Ordinance No. c?c0‘- 9/ AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 14 OF THE MUNICIPAL CODE OF THE CITY OF SOUTH BEND BY ADDING NEW ARTICLE 3 ENTITLED "PROHIBITION OF OPEN ALCOHOLIC BEVERAGE CONTAINERS. " STATEMENT OF PURPOSE AND INTENT: In the last session of the Indiana General Assembly, House Bill No. 1645 was introduced which would have prohibited open alcoholic beverage containers in motor vehicles. This Bill and the various other amendments offered during the last session of the Indiana General Assembly, were allowed to die in the House Committee without a vote. The Common Council acknowledges that the best means of addressing this type of issue is through a state law. However, in light of the fact that the Indiana General Assembly has failed to take action on this important public safety issue, the Council believes that an interim local measure is necessary. The following Ordinance is patterned after House Bill No. 1645, and is believed to be in the best interest of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS: Section I. Chapter 14 of the Municipal Code of the City of South Bend, Indiana, is hereby amended by the addition of Article 3 entitled "Prohibition of Open Alcoholic Beverage Containers" which will read in its entirety as follows: Article 3. Prohibition of Open Alcoholic Beverage Containers Section 14-12. Definitions. (a) "Alcoholic beverage" shall have the meaning set forth in Indiana Code Section 7. 1-1-3-5. (b) "Container" shall have the meaning set forth in Indiana Code Section 7. 1-1-3-13. (c) "Motor vehicle" shall have the meaning set forth in Indiana Code Section 9-1-1-2, except that "motor vehicle, " as used in this Article, shall not include recreational vehicles, as defined in Indiana Code Section 9- 1-1-1(t) and which is designed to transport more than ten 110) passengers including the operator, or any chartered passenger vehicle licensed to operate within the State of Indiana. • (C) from which some of the contents have been removed; while in a motor vehicle that is being operated upon a public highway within the City Limits commits a violations of this Article constituting an ordinance violation. Section 14-14. Operator or Owner of Motor Vehicle in Violation. (a) The operator or owner of a motor vehicle who, while the motor vehicle is in operation knowingly keeps or allows to be kept in an area of the motor vehicle that is accessible to the operator or a passenger a container: (1) that has been opened; (2) that has a broken seal; or (3) from which some of the contents have been removed; Commits a violation of this Article constituting an ordinance violation. (b) Notwithstanding Section 14-12 (c) , the operator of a recreational vehicle or chartered passenger vehicle licensed to operate within the State of Indiana, who, while the motor vehicle is in operation, knowingly keeps or allows to be kept in an area of the recreational vehicle or chartered passenger vehicle that is accessible to the operator a container: (1) that has been opened; (2) that has a broken seal; or (3) from which some of the contents have been, , removed; commits a violation of this Article constituting an ordinance violation. Section 14-15. Citations. An officer of the South Bend Police Department may issue a City Ordinance Violation Citation to a person who violates this Article. The first such citation issued to an individual shall impose a fifty dollar ($50.00) fine. Each subsequent citation issued to an individual shall impose a penalty not less than $100. 00 and not more than $2,500.00. Section 14-16. Signs. Signs giving notice of this prohibition of open alcoholic beverage containers shall be posted giving notice of such regulation at all locations deemed appropriate by the City Engineer or his designee. Section II. Chapter 2, Article 19, Section 2-213 (a) is amended in part by adding the following to the Schedule of Ordinance and Code Violations: 14-14 Open Alcoholic Beverage Container $50.00 Section III: This ordinance shall be in full force and affect from and after its passage by the Common Council, approval by the Mayor, and legal publication as required by law. Ifitt .17-, 4 Memb- r of the ommo n Council • SOUTH'N‘\\\\\ City of South Bend Common Council �� �� County-City Building • South Bend, Indiana 46601 III1� a ' August 5, 1991 (219) 284-9321 Fax (219) 284-9173 The Common Council of the City of South Bend 4th Floor County City Building Donald Niezgodski South Bend, Indiana 46601 President RE: Open Alcoholic Beverage Containers Ann Puzzello Vice-President Dear Council Members: Loretta Duda Chairman. Committee As you are well aware, Indiana, is one of the few of the Whole remaining states which does not have a state law which makes it illegal to have an open alcoholic container in a motor vehicle. Stephen Luecke During the last session of the Indiana General First District Assembly, numerous articles appeared in many newspapers Donald Niezgodski showing the need for such a law. Unfortunately, the Second District Indiana General Assembly failed to take action in this area. William Soderberg Third District I believe that the best way to address this is through a state law. However, until one is passed, I believe Ann Puzzello that we, as public officials, must take appropriate Fourth District action at the local level. Linas Slavinskas I have been in contact with members of the South Bend Fifth District Police Department and in particular Doug Bagarus, on Thomas Zakrzewski this Bill. He, and other Public Safety Officials, will Sixth District have additional comments and information on the need for such a bill. Sean Coleman At Large I look forward to discussing this with you further when it is sent to the Public Safety Committee for review Loretta Duda and recommendation. I sincerely urge you to support At Large this very needed public safety measure. Eugene Ladewski At Large Thank you. Sin;-rely, . Kathleen Cekanski-Farrand Lo .-tta ISuda, ouncil Member At Large Council Attorney _-s., s''�,, City of South Bend to4`?,�\'gypli/ 4:��h� F : � '% x Common Council }�% County-City Building • South Bend, Indiana 46601 1■\ .../865 a=/ August 23, 19 9 (219) 284-9321 Fax (219) 284-9173 Donald Niezgodski TO: Loretta Duda President p c' FROM: Kathleen Cekanski—Farrand '►/tom �` Ann Puzzello Vice President RE: Bill No. 51-91 Loretta Duda Prohibition of open alcoholic beverage containers Chairman. Committee of the Whole Pursuant to your request I am providing additional background information with regard to Bill No. 51-91 which you are sponsoring. Stephen Luecke First District This bill would amend Chapter 14 by the inclusion of new Article 3 entitled "Prohibition of Open Alcoholic Donald Niezgodski Beverage Containers". Second District William Soderberg The first Section, namely Section 14-12, refers to Third District certain definitions. As you can see, the three (3) definitions referenced specifically refer to the Ann Puzzello definitions set forth in Indiana State Law. So that Fourth District there is a clear understanding of what these definitions are, I am providing each of them to you, as Linas Slavinskas follows: Fifth District * The term "alcoholic beverage" means a liquid or solid that: Thomas zakrzewski (1) Is, or contains, one-half per cent (0.5%) Sixth District or more alcohol by volume; Sean Coleman (2) Is fit for human consumption; and At Large (3) Is reasonably likely, or intended, to be used as a beverage. (I.C. 7.1-1-3-5) Loretta Duda At Large * The term "container" means a receptacle in which an alcoholic beverage is immediately contained and Eugene Ladewski with which the alcoholic beverage contained in it At Large is in immediate contact. (I.C. 7.1-1-3-13) * "Motor vehicle" means every vehicle, as defined in Section 9-1-1-2, which is self-propelled, except those vehicles which are included in the Kathleen Cekanski-Farrand terms "farm tractor or implements of husbandry" as Council Attorney defined in 9-1-1-2. (I.C. 9-1-1-2) . • • It should be stressed that the proposed ordinance would provide another civil tool to assist our Police Officers in carrying our their routine duties related to the public safety of both citizens and property while in the City limits. This proposed bill does not and cannot impose any criminal sanctions, since that would be inconsistent with Indiana State Law. This ordinance should not be confused with the sanctions imposed by State Law primarily within Title 9 of the Indiana Code addressing "Traffic Offenses and Procedures" . It is my understanding the Council Member Luecke has raised a question with regard to the possible search of a vehicle. Both the United States Supreme Court and the Indiana Supreme Court have numerous cases addressing searches of automobiles. Although it is difficult, if not impossible, to summarize the several hundred cases addressing this issue, there are some basic principles and important constitutional principles which evolve from these cases. First, if a police officer has lawfully impounded a vehicle, the officer may conduct an inventory search to protect the owner of the car and its contents and to protect the police from claims of lost or stolen property. Secondly, if a police officer has lawfully impounded a car and has probable cause to believe that the car contains evidence of a crime, a warrantless search may be made even though it is convenient to obtain a warrant. Thirdly, there may be circumstances justifying a search of a car short of probable cause, to believe that the car contained evidence of a crime. Lastly, in a situation in which a police officer is legitimately inside or looking into a car, the police officer may sieze and evidence that is in "plain view". Therefore, it is anticipated that if this bill is passed, that it would be enforced in conjunction with the enforcement of Title 9 State Law regulations. It should also be noted that under the "home rule" legislation provided to the City through State Law (I.C. 36-1-3-1 through 36-1-3-9) , it is the policy of the State to grant to Cities "all the powers that they need for the effective operation of government as to local affairs". The home rule statute further provides that "any doubt as to the existence of a power of a unit shall be resolved in favor of its existence". Cases interpreting some of the provisions of home rule have noted that City ordinances ar presumed to be valid and constitutional until adjudged to the contrary by a court of competent jurisdiction. The courts have also noted that when a municipal corporation exercises its • police powers, courts will not interfere, unless there has been a clear abuse of disgression. A 1984 Indiana Appellate Court case noted that if the State has refrained from regulating in a specific area, the unit was free to do so. Accordingly, since the State of Indiana has refrained from specifically prohibiting open alcoholic beverage containers in motor vehicles, the City may address this area by local legislation. I am also attaching a copy of an article from the March 3, 1991 issue of the South Bend Tribune which compares the Michigan open container law with effect of Indiana not having such a State Law. I an attaching a copy of Substitute Bill 51-91 which contains new Section 14-16 Signs. This section would authorize the City Engineer or his designee to determine appropriate locations for signs giving notice to the public of this ordinance. If you or any other members of the Common Council have any questions, please do not hesitate to contact me. Thank you. Attachment cc: City Clerk Common Council eattindttn Evart Co the Common Council of tip Mtn of liftinttly fend: Your Committee of the Whole to whom was referred BILL NO. 51-91 SECOND READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 14 OF THE MUNICIPAL CODE OF THE CITY OF SOUTH BEND BY ADDING NEW ARTICLE 3 ENTITLED "PROHIBITION OF OPEN ALCOHOLIC BEVERAGE CONTAINERS" . • Respectfully report that they have examined the matter and that in their opinion This bill should be recommended to the Council favorable, as amended, as per the attached. Loretta Duda Chairman Amendments to Substitute Bill 51-91 Amend Section 14-12 (c) to read as follows: "Motor vehicle" shall have the meaning set forth in Indiana Code Section9-1-1-2, except that "motor vehicle," as used in this Article, shall not include recreational vehicles, as defined in Indiana Code Section 9-1-1-1(t) and which is designed to transport more than ten {10) passengers including the operator, or any chartered passenger vehicle licensed to operate within the State of Indiana. Amend Section 14-14 by adding (a) to the beginning of the paragraph, and by adding new paragraph (b) which shall read as follows: Notwithstanding Section 14-12-(c) , the operator of a recreational vehicle or chartered passenger vehicle licensed to operate within the State of Indiana, who, while the motor vehicle is in operation, knowingly keeps or allows to be kept in an area of the recreational vehicle or chartered passenger vehicle that is accessible to the operator a container: . (1) that has been opened; (2) that has a broken seal; or (3) from which some of the contents have been removed; commits a violation of this Article constituting an ordinance violation. Amend Section 14-15 Citations to read as follows: An officer of the South Bend Police Department may issue a City Ordinance Violation Citation to a person who violates this Article. The first such citation issued to an individual shall impose a fifty dollar ($50.00) fine. Each subsequent citation issued to an individual shall impose a penalty not less than $100.00 and not more than $2,500.00.