Center City Ordinances
ORDINANCES
City of Center
North Dakota
Ordinances Adopted:
November 2005
i
ENACTING ORDINANCE
ORDINANCE NO. 1
Adopting the Revised Ordinances of the City of Center, North Dakota, and repealing all ordinances previously adopted with certain exceptions.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CENTER, NORTH DAKOTA:
Section 1. CITY OF CENTER REVISED ORDINANCES OF 2005. This ordinance and the ordinances hereby adopted shall be known and cited as the Center Revised Ordinances of 2005.
Section 2. ENACTMENT. The Center Revised Ordinances of 2005, consisting of Chapters I through XVII, an original copy of which has been authenticated by the original signatures of the City’s chief executive officer and auditor and which original is on file in the office of the City Auditor, is hereby adopted as the Ordinances of the City of Center.
Section 3. REPEAL. All ordinances of the City adopted prior to the date of this enacting ordinance are hereby repealed except the following ordinances, which shall continue in full force and effect regardless of the fact that they are herein omitted:
1. All existing ordinances granting franchises, if omitted from these revised ordinances.
2. All existing ordinances creating contract obligations on the part of the City, which obligations shall remain binding until fully performed by the City.
3. All of the existing ordinances levying taxes for any years under the provisions of any law relating to the issuance of revenue bonds, municipal bonds, warrants, certificates of indebtedness, or other municipal obligations, whether general or special.
4. All salary and appropriation ordinances.
5. Any and all other ordinances adopted in said Center Revised Ordinances of 2005 by reference, although the same are not set forth in full therein.
6. All existing ordinances establishing, extending or reducing the city limits of the City, if omitted from these revised ordinances.
ii
The incorporation herein of any of the ordinances of the City of Center granting franchises shall not operate to repeal the same in their original form nor to extend the term of any franchise beyond that fixed in that ordinance granting the same which is reenacted herein.
Section 4. EXISTING LICENSES AND PERMITS. All licenses and permits issued prior to the date on which this ordinance becomes effective shall continue in force for the remainder of the term for which the same were issued, without additional fees, but all licensees and permittees shall be governed by the provisions of the Center Revised Ordinances of 2005 for the remainder of the terms of said licenses and permits, in the same manner and to the same extent as if said licenses and permits had been issued under the provisions of the Center Revised Ordinances of 2005.
Section 5. NEW LICENSES AND PERMITS. In the case of any license or permit not heretofore required and appearing for the first time in the Center Revised Ordinances of 2005, such license or permit shall be secured on or before the first day of the first month following the effective date of this ordinance, and the first fee therefore shall be pro-rated for the remainder of that term thereof on a monthly basis, provided that the minimum fee for any such new license or permit shall be $1.00.
Section 6. INVALIDITY OF PART. If any section, subsection, sentence, clause or phrase of these ordinances is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of any other section, subsection, sentence, clause, phrase or portion thereof. The City Council hereby declares that it would have passed these ordinances and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional.
Section 7. EFFECTIVE DATE. This ordinance shall be in full force and effect from and after its final passage and approval, and without publication.
_____________________________________
Richard Zarr, Mayor
ATTEST:
____________________________________
Ellen Lange, City Auditor
CITY SEAL
iii
First Reading: October 3, 2005
Second Reading and Final Passage: November 7, 2005
iv
TABLE OF CONTENTS
CHAPTER ONE – GOVERNMENT ORGANIZATION ....................................... 1
ARTICLE 1 - Jurisdiction .......................................................................... 4
ARTICLE 2 - City Council – Board of City Council ................................... 5
ARTICLE 3 - Elective Officers .................................................................. 6
ARTICLE 4 - Elective Officers Other than City Council ............................ 8
ARTICLE 5 - Appointive Officers .............................................................. 9
ARTICLE 6 - Special Provisions Regarding City Officers ....................... 11
ARTICLE 7 - Purchasing and Disposition of Property ............................ 14
ARTICLE 8 - Municipal Elections ........................................................... 15
ARTICLE 9 - Records Management Policy ............................................ 20
CHAPTER TWO – ORDINANCES ................................................................... 21
ARTICLE 1 - Procedure ......................................................................... 22
CHAPTER THREE – PUBLIC PLACES AND PROPERTY ............................. 26
ARTICLE 1 - Construction and Repair ................................................... 28
ARTICLE 2 - Use and Care of Streets, Sidewalks and Public Places .... 31
ARTICLE 3 - Unclaimed and Abandoned Property ................................ 37
ARTICLE 4 - House Numbering ............................................................. 39
CHAPTER FOUR – FIRE PROTECTION AND PREVENTION ....................... 41
ARTICLE 1 - Fire Limits ......................................................................... 42
ARTICLE 2 - Fires in Public Places ........................................................ 43
ARTICLE 3 - Firearms, Fireworks and Explosives ................................. 44
ARTICLE 4 - Adoption of Electrical Code ............................................... 45
ARTICLE 5 - Penalty for Violation of this Chapter .................................. 45
CHAPTER FIVE – POLICE DEPARTMENT .................................................... 46
ARTICLE 1 - Organization and Regulations ........................................... 47
ARTICLE 2 - Powers and Duties ............................................................ 48
ARTICLE 3 - Miscellaneous ................................................................... 49
CHAPTER SIX – ZONING – LAND USE PLANNING ...................................... 50
ARTICLE 1 - Planning and Zoning Commission..................................... 51
ARTICLE 2 - Separate Ordinance Volume ............................................. 51
CHAPTER SEVEN - WATER AND SEWER .................................................... 52
ARTICLE 1 - Utility Established .............................................................. 54
ARTICLE 2 - Water Service ................................................................... 64
ARTICLE 3 - Regulation of Sewer Use .................................................. 70
ARTICLE 4 - Sewer Surcharge .............................................................. 78
ARTICLE 5 - Adoption of State Plumbing Code ..................................... 81
ARTICLE 6 - General Penalty Provisions ............................................... 82
v
CHAPTER EIGHT - BUSINESS REGULATIONS AND LICENSES ................. 83
ARTICLE 1 - General Provisions ............................................................ 86
ARTICLE 2 - Transient Merchants ......................................................... 88
ARTICLE 3 - Hawkers and Peddlers ...................................................... 92
ARTICLE 4 - Runners, Solicitors and Canvassers ................................. 94
ARTICLE 5 - Alcoholic Beverages .......................................................... 97
ARTICLE 6 - Shows, Carnivals and Circuses ...................................... 107
ARTICLE 7 - Validity ........................................................................... 108
ARTICLE 8 - Penalty ............................................................................ 108
CHAPTER NINE – TRAFFIC ......................................................................... 109
ARTICLE 1 - Definitions ....................................................................... 114
ARTICLE 2 - Traffic Administration ...................................................... 114
ARTICLE 3 - Enforcement and Obedience to Traffic Regulations ........ 115
ARTICLE 4 - Traffic Control Devices .................................................... 118
ARTICLE 5 - Speed Regulations and Care Required ........................... 120
ARTICLE 6 - Turning Movements ........................................................ 125
ARTICLE 7 - Special Stops .................................................................. 125
ARTICLE 8 - Operators ........................................................................ 127
ARTICLE 9 - Miscellaneous Driving Rules ........................................... 127
ARTICLE 10 - Pedestrians’ Rights and Duties ....................................... 135
ARTICLE 11 - Regulations for Motorcycles ............................................ 138
ARTICLE 12 - Regulations for Bicycles .................................................. 140
ARTICLE 13 - Angle Parking .................................................................. 141
ARTICLE 14 - Stopping, Standing or Parking Prohibited in Specific Places142
ARTICLE 15 - Reserved Parking Areas ................................................. 147
ARTICLE 16 - Time Limit Parking Zones ............................................... 147
ARTICLE 17 - Equipment of Vehicles .................................................... 148
ARTICLE 18 - Lighted Lamps Required ................................................. 151
ARTICLE 19 - Regulating the Kinds of Classes of Traffic on Certain Roads152
ARTICLE 20 - Criminal Traffic Violations ............................................... 152
ARTICLE 21 - Disposition of Traffic Offenses ........................................ 156
ARTICLE 22 - Sections Not Adopted ..................................................... 161
ARTICLE 23 - Filing of Ordinance .......................................................... 161
ARTICLE 24 - Adoption of Amendments by Reference .......................... 161
ARTICLE 25 - Severability Clause ......................................................... 161
ARTICLE 26 - Penalties ......................................................................... 162
CHAPTER TEN – HEALTH ........................................................................... 163
ARTICLE 1 - Board of Health ............................................................... 164
ARTICLE 2 - Local Health Officer ......................................................... 164
ARTICLE 3 - Garbage, Refuse, Rubbish .............................................. 164
ARTICLE 4 - Dangerous Buildings ....................................................... 166
APPENDIX 10-1 Notice of Hearing…………………………………………… 171
APPENDIX 10-2 Notice and Order…………………………………………… 172
APPENDIX 10-3 Warning……………………………………………………… 173
vi
CHAPTER ELEVEN - ANIMALS AND FOWL ................................................ 174
ARTICLE 1 - General Regulations ....................................................... 175
ARTICLE 2 - Dogs and Cats ................................................................ 177
CHAPTER TWELVE - PUBLIC NUISANCES ................................................ 179
ARTICLE 1 - Sanitary Nuisances ......................................................... 181
ARTICLE 2 - Smoke - Gases ............................................................... 182
ARTICLE 3 - Radio Interference and Noise Control ............................. 183
ARTICLE 4 - Automobiles - Personal Property .................................... 184
ARTICLE 4.1 - Property Found on Private Lands………………………… 186
ARTICLE 5 - Noxious Weeds ............................................................... 192
CHAPTER THIRTEEN – OFFENSES ............................................................ 194
ARTICLE 1 - In General ....................................................................... 196
ARTICLE 2 - Offenses Against Persons ............................................... 197
ARTICLE 3 - Offenses Against Property .............................................. 199
ARTICLE 4 - Offenses Against Public Order, Health, Safety………….
and Sensibilities.............................................................. 211
ARTICLE 5 - Sentencing ...................................................................... 222
ARTICLE 6 - Penalties ......................................................................... 231
CHAPTER FOURTEEN – FRANCHISE ........................................................ 232
ARTICLE 1 - Grant of Franchises ......................................................... 233
CHAPTER FIFTEEN - BUILDING CODE ...................................................... 250
ARTICLE 1 - General Building Code .................................................... 251
CHAPTER SIXTEEN - ELECTRICAL CODE ................................................. 252
ARTICLE 1 - Adoption of Electrical Code ............................................. 253
ARTICLE 2 - Permits ............................................................................ 253
ARTICLE 3 - Supervision of Work ........................................................ 254
CHAPTER SEVENTEEN - PERSONNEL POLICIES .................................... 256
ARTICLE 1 - Personnel Policies and Procedures ................................ 257
CERTIFICATE ............................................................................................... 258
1
CHAPTER ONE
GOVERNMENT ORGANIZATION
ARTICLE 1 - Jurisdiction
1.0101 Over Persons and Property
1.0102 Defining City Limits
1.0103 Division of City into Precincts
1.0104 City Fines and Penalties Limited
ARTICLE 2 - City Council - Board of City Council
1.0201 Regular Meetings
1.0202 Special Meetings
1.0203 Meeting to be Public - Journal of Proceedings to be Kept
1.0204 Quorum
1.0205 Reconsidering or Rescinding Votes at Special Meeting
1.0206 Rules and Order of Business
ARTICLE 3 - Elective Officers
1.0301 City Council - Who Constitutes
1.0302 Term of Office of Council Members
1.0303 Mayor - Qualifications - Term
1.0304 When President and Vice President of Council are Elected
1.0305 Vacancies on Council or in Office of Mayor - How Filled
1.0306 Absence or Disability of Mayor - Who to be Acting Mayor
1.0307 Mayor to Preside at Council Meetings - Voting Power of Mayor
1.0308 Mayor May Remove Appointive Officers - Reasons for Removal to be Given
1.0309 Mayor May Suppress Disorder and Keep Peace
1.0310 Mayor to Perform Duties Prescribed by Law – Enforce Laws and Ordinances
1.0311 Inspection of Books, Records and Papers of City by Mayor
1.0312 Ordinance or Resolution Signed or Vetoed by Mayor
1.0313 Message to Council
1.0314 Police Chief and Policemen Appointed by Mayor
1.0315 Mayor May Administer Oath
ARTICLE 4 - Elective Officers Other than City Council
1.0401 Municipal Judge
1.0402 Report to the City Council - Receipts
1.0403 Court Hours
1.0404 Duties of Municipal Judge
2
ARTICLE 5 - Appointive Officers
1.0501 Appointive Officers
1.0502 Term of Appointive Officers
1.0503 Officers Commissioned by Warrant - City Auditor to Receive Certificate of Appointment
1.0504 General Duties of City Auditor
1.0505 General Duties of City Attorney
1.0506 General Duties of Other Appointive Officers
ARTICLE 6 - Special Provisions Regarding City Officers
1.0601 Bonds of Municipal Officers and Employees
1.0602 Oaths of Municipal Officers
1.0603 Salaries of Elected Officers and Employees Fixed by Ordinance or Resolution–Diminution of Officers’ Salaries During Term Prohibited
1.0604 Salaries of Appointive Officers and Employees
1.0605 Meals and Lodging - Amount Allowed
1.0606 Personal Interest in Contract by Public Officer - Penalty
1.0607 Retiring Officer to Turn Over Books
1.0608 Administrative Duties, Powers, and Privileges of Officers
1.0609 Obstructing a Public Official - Prohibited
ARTICLE 7 - Purchasing and Disposition of Property
1.0701 Competitive Bidding Requirements
1.0702 Procedure
1.0703 Open Market Purchases - Emergency
1.0704 Accounts Against City to be in Writing
1.0705 Conveyance, Sale, Lease, or Disposal of Property
1.0706 Real Property Transfer Requirements
ARTICLE 8 - Municipal Elections
1.0801 Qualified Electors in Municipal Elections - Restrictions
1.0802 Polling Places - Polls Open - Notice
1.0803 Designation of Polling Places for Municipal Elections
1.0804 Compensation of Inspectors, Judges and Clerks at Municipal Elections
1.0805 Reference to Party Ballot or Affiliation in Petition of Candidate for Municipal Office Prohibited
1.0806 Petition for Nomination of Elected Official in Municipalities - Signatures Required - Contents
1.0807 Ballots in Municipalities - Makeup
1.0808 Clerks Appointed to Fill Vacancies - Oath - Powers and Duties of Judges and Clerks of Municipal Elections
3
1.0809 Counting Ballots - Returns - Canvass of Returns by City Council of Municipality - Agreement with the County
1.0810 Municipal Elections to be Governed by Rules Applicable to County Elections - Absent Voting
1.0811 City Auditor to Notify of Election or Appointments
1.0812 New Election Upon Failure to Elect
1.0813 Special Elections Conducted in Same Manner as General Elections
1.0814 Highest Number of Votes Elects in Municipal Election - Procedure on Tie Vote
ARTICLE 9 - Records Management Policy
1.0901 Adoption of Policy
4
CHAPTER ONE
GOVERNMENT ORGANIZATION
ARTICLE 1 - Jurisdiction
1.0101 Over Persons and Property
The jurisdiction of the City of Center, North Dakota, extends to all persons, places and property within its boundaries and such extra-territorial jurisdiction as is granted to it under the provisions of the North Dakota Century Code (hereafter referred throughout these Ordinances as “NDCC”) and subsequent amendments.
1.0102 Defining City Limits
There shall be included within the municipal limits of the City of Center, N.D., all areas duly platted and recorded as being within said City; all lots and blocks shall also include all streets, alleys and public ways included within the area and adjacent thereto which are defined as within the confines of the city limits. The City Council shall have jurisdiction within the corporate city limits and over any common or public grounds belonging to the City, and in and over all places within one-half mile of the municipal limits for the purpose of enforcing health ordinances and regulations, and police regulations and ordinances adopted to promote the peace, order, safety and general welfare of the municipality.
1.0103 Division of City into Precincts
There shall be one precinct within the City to be known and designated as: The City of Center Precinct and said precinct shall consist of all that part of the City which lies within the boundaries hereinafter set forth for said precincts and the polling place in said precinct shall be located at the site hereinafter set forth, namely: The Center Civic Center, unless alternate polling places are established by the City Council to facilitate cooperative elections with Oliver County.
1.0104 City Fines and Penalties Limited
The provisions of NDCC Section 40-05-06 and all subsequent amendments are hereby incorporated by reference in this ordinance.
This section shall not be construed to prohibit the use of the sentencing alternatives, other than a fine or imprisonment, provided by NDCC Section 12.1-32-02 for the violation of a City ordinance, nor shall this section limit the use of deferred or suspended sentences in accordance with subsections 3 and 4 of NDCC section 12.1-32-02.
5
ARTICLE 2 - City Council – Board of City Council
1.0201 Regular Meetings
The City Council shall meet regularly at the Center Civic Center on the first Monday of each month at the hour of 7:00 o’clock p.m. Central Time unless some other time and place shall be specifically fixed by the Council. The Council shall meet in addition thereto, as often as required by NDCC Section 40-08-10.
1.0202 Special Meetings
Special meetings may be called at any time by the mayor or any two (2) members of the City Council to consider matters mentioned in the call of such meetings. Notice of any special meeting shall be given to each member of the City Council at least two hours before the time of the meeting.
1.0203 Meeting to be Public - Journal of Proceedings to be Kept
All meetings of the City Council shall be open to the public, and a journal of its proceedings shall be kept. Notice of the regular meeting time or of special meetings shall be given as provided by NDCC Section 44-04-20 and subsequent amendments.
1.0204 Quorum
The provisions of NDCC Section 40-06-03 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
A majority of the members of the City Council of a municipality shall constitute a quorum to do business but a smaller number may adjourn from time to time. The City Council may compel the attendance of absentees under such penalties as may be prescribed by ordinance.
1.0205 Reconsidering or Rescinding Votes at Special Meeting
The provisions of NDCC Section 40-06-04 and all subsequent amendments are hereby incorporated by reference in this ordinance.
No vote of the City Council of a municipality shall be reconsidered or rescinded at a special meeting unless there is present at such special meeting as large a number of members as were present when such vote was taken.
1.0206 Rules and Order of Business
6
Rules and order of business for the parliamentary procedure of the City Council shall be by Robert’s Rules of Order.
ARTICLE 3 - Elective Officers
1.0301 City Council - Who Constitutes
The City Council of the City shall be the City Council, which shall be composed of the mayor and four council members. The mayor and council members shall be elected as provided by law.
1.0302 Term of Office of Council Members
Council members shall be qualified electors and residents of the City, shall be elected at large, and shall hold office for four years and until their successors are elected and qualified. Terms of council members shall be arranged so that one-half of the council members, as nearly as practicable, are elected in any one election.
1.0303 Mayor - Qualifications - Term
The chief executive officer of the City is the mayor. The mayor shall be a qualified elector within the City and shall hold office for four years and until a successor is elected and qualified.
1.0304 When President and Vice President of Council are Elected
The provisions of NDCC Section 40-08-11 and all subsequent amendments are hereby incorporated by reference in this ordinance. At the organizational meeting in each even numbered year, the members of the City Council shall elect from their number a president and vice president who shall hold their respective offices until their successors are elected at the organizational meeting following the next biennial election.
1.0305 Vacancies on Council or in Office of Mayor - How Filled
If a vacancy occurs in the office of council member by death, resignation or otherwise, the City Council may call a special city election to fill such vacancy for the unexpired term, or may, after fifteen days of the date of such vacancy appoint a qualified elector of the City to fill such vacancy until the next city election, at which election the unexpired term shall be filled. Upon petition of five percent of the electors, as determined by the total number of votes cast in the last general city election, the council shall call a special election to fill a vacancy occurring more than six months before the next city election, if the petition has been submitted days and before four p.m. of the fifteenth day following the date of such vacancy or of the vacancy being filled by appointment. If the petition is
7
mailed, it shall be in possession of the Council or its representative before four p.m. on the fifteenth day after the vacancy occurs or after the vacancy was filled by appointment.
If a vacancy occurs in the office of mayor, the City Council may call a special city election to fill such vacancy for the unexpired term or may, after fifteen days from the date of such vacancy, elect one of its members to act as mayor, the member so elected shall possess all of the rights and powers of the mayor until the next election and until a mayor is elected and qualified. Upon petition of five percent of the electors, as determined by the total number of votes cast in the last general city election, the council shall call a special election to fill a vacancy occurring more than six months prior to the next city election, provided such petition is submitted within fifteen days of the date of such vacancy. During the interim between the date when a vacancy occurs and election and qualification of a successor, the president of the City Council shall be acting mayor.
1.0306 Absence or Disability of Mayor - Who to be Acting Mayor
During the absence of the Mayor from the City or during his temporary disability, the President of the City Council shall be the acting mayor and shall possess all of the powers of the Mayor. In the absence or disability of the Mayor and the President of the City Council, the Vice President of the City Council shall be the acting mayor.
1.0307 Mayor to Preside at Council Meetings - Voting Power of Mayor
The Mayor shall preside at all meetings of the City Council, but shall not vote except in case of a tie, when he shall cast the deciding vote.
1.0308 Mayor May Remove Appointive Officers - Reasons for Removal to be Given
The Mayor may remove any officer appointed by him whenever he is of the opinion that the interests of the City demands such removal, but he shall report the reasons for such removal to the council at its next regular meeting.
1.0309 Mayor May Suppress Disorder and Keep Peace
The Mayor may exercise within the city limits the powers conferred upon the sheriff to suppress disorder and keep the peace.
1.0310 Mayor to Perform Duties Prescribed by Law - Enforce Laws and Ordinances
8
The Mayor shall perform all duties prescribed by law or by the city ordinances, and shall see that the laws and ordinances are faithfully executed.
1.0311 Inspection of Books, Records and Papers of City by Mayor
The Mayor, at any time, may examine and inspect the books, records and papers of any agent, employee or officer of the City.
1.0312 Ordinance or Resolution Signed or Vetoed by Mayor
The Mayor shall sign or veto each ordinance or resolution passed by the Council.
1.0313 Message to Council
The Mayor annually and from time to time shall give the Council information relative to the affairs of the City and shall recommend for consideration such measures that he may deem expedient.
1.0314 Police Chief and Policemen Appointed by Mayor
The Mayor may appoint any number of policemen which he and the City Council may deem necessary to preserve the peace of the City, and he shall appoint one of the number as Chief of Police. Such appointment shall be subject to approval of the Council.
1.0315 Mayor May Administer Oath
The Mayor of the City may administer oaths and affirmations.
ARTICLE 4 - Elective Officers Other than City Council
1.0401 Municipal Judge
There shall be elected each four years a municipal judge who shall hold office until a successor is elected and qualified. The municipal judge shall perform all the duties prescribed by law and the ordinances of this City. The municipal judge shall receive a monthly salary as full compensation for all services rendered.
1.0402 Report to the City Council - Receipts
9
At the end of each month, the municipal judge shall make and file with the City Auditor a written report under oath showing an account of all fees, fines, costs, forfeitures, and any other monetary consideration collected by the court during the preceding month and showing the actions in which the fees were collected. The municipal court shall pay the amount of fees, fines, costs, forfeitures, and any other monetary consideration collected to the city treasury at the end of each month. The judge’s monthly salary may not be paid for any month until the judge has complied with this section. This report will be accompanied by the duplicate receipt or receipts of the City Auditor for the total amount of the fees and money so collected on behalf of the City.
1.0403 Court Hours
The municipal judge shall be in attendance at municipal court for the transaction of business that may come before him and shall devote the time necessary to handle and dispose of the business coming before him.
1.0404 Duties of Municipal Judge
Additional duties of the municipal judge shall be as provided by the provisions of NDCC Chapter 40-18 and all amendments thereto.
ARTICLE 5 - Appointive Officers
1.0501 Appointive Officers
The mayor, with the approval of the City Council, shall appoint the following officers:
1. City Auditor;
2. City Assessor;
3. City Attorney;
4. City Engineer;
5. Police Chief and Policemen; and
6. Such other officers as the City Council deems necessary and expedient.
The city assessor shall be appointed at the first meeting of the City Council in September of each odd numbered year. All other officers shall be appointed annually at the first meeting of the City Council in November of each year.
The City Council, by majority vote, may dispense with any appointive office and provide that the duties of that office be performed by others.
1.0502 Term of Appointive Officers
10
The term of all appointive officers of the City shall commence the first day of January succeeding their appointment unless otherwise provided by ordinance or determined by the City Council, and such officers shall hold their respective offices for one year, except the City Assessor, whose term shall be two years, and until their successors are appointed and qualified.
1.0503 Officers Commissioned by Warrant - City Auditor to Receive Certificate of Appointment
All officers elected or appointed, except the City Auditor, council members and mayor, shall be commissioned by warrants signed by the auditor and the mayor or president of the City Council. The mayor shall issue a Certificate of Appointment to the auditor.
1.0504 General Duties of City Auditor
The provisions of NDCC Section 40-16-03 and all subsequent amendments thereto are hereby incorporated by reference in this ordinance. It shall be the duty of the City Auditor to issue the calls for all special meetings of the City Council when requested to do so by the mayor or any two (2) members of the City Council. He or she shall also keep a full and complete record of all meetings of the City Council and shall keep a book titled as the “Ordinance Book” and shall record therein at length all ordinances of the City. The Auditor shall also keep a book titled as the “Special Assessment Book” in which he or she shall keep all records of special assessments. All such books shall have full and complete indexes of the contents thereof. The Auditor shall report to the City Council at the end of every month a list of all warrants, interest coupons, bonds or other evidence of indebtedness which may have been redeemed or paid by him during the month and shall duly give to the Council a copy of his receipts therefore. The Auditor shall further handle all correspondence, permits and licenses and shall do and perform each, every and all duties and things prescribed by statutes of this state, or by an ordinance, resolution or proper instruction of the City Council.
1.0505 General Duties of City Attorney
The city attorney shall conduct all the law business of the City and of the departments thereof, and all law business in which the City shall be interested; and shall, when requested, furnish written opinions upon the subjects submitted to him by the City Council or any other department. It shall also be his duty to draft all ordinances, bonds, contracts, leases, conveyances and such other instruments as may be required by the officers of the City; to examine and inspect tax and assessment rolls and all other proceedings in reference to the levying and collection of taxes, and to perform each and every and all duties and things prescribed for him to do by statutes of the state, or by ordinance, resolution or proper instruction of the City Council.
11
1.0506 General Duties of Other Appointive Officers
All other appointive officers shall perform such duties as directed by the City Council, directed by these ordinances or directed or authorized by the laws of the state of North Dakota.
ARTICLE 6 - Special Provisions Regarding City Officers
1.0601 Bonds of Municipal Officers and Employees
The following officers and employees of the City shall be bonded in the sums as hereinafter set forth:
City Auditor $250,000.00
City Manager $ 25,000.00
Municipal Judge $ 25,000.00
City Assessor $ 5,000.00
Said officers or employees shall be bonded in accordance with the provisions of NDCC Section 40-13-02 and Chapter 26.1-21.
1.0602 Oaths of Municipal Officers
Every person appointed to any municipal office, before he enters upon the discharge of the duties thereof, shall take and subscribe the oath of office prescribed for civil officers and, except in the case of the auditor, shall file the same with the City Auditor within 10 days after notice of his election or appointment has been given. The oath of the auditor shall be filed in the office of the county auditor. Refusal to take the oath of office shall also be deemed a refusal to serve and, therefore, a failure to qualify for the office pursuant to NDCC Section 44-02-01. (Source: NDCC Section 40-13-03)
1.0603 Salaries of Elected Officers and Employees Fixed by Ordinance or Resolution – Diminution of Officers’ Salaries During Term Prohibited
Except where otherwise provided by law, any officer or employee of the City is entitled to receive the salary, fees, or other compensation fixed by ordinance or resolution. After having been once fixed, the salary of an officer may not be diminished to take effect during the term for which the officer was elected or appointed.
1.0604 Salaries of Appointive Officers and Employees
12
Salaries of City Appointive Officers and Employees, except as otherwise provided by law, shall be in such sums and amounts as may be, by budget and resolution of the City Council, fixed from time to time.
1.0605 Meals and Lodging - Amount Allowed
Each elective or appointive officer, employee, representative, or agent of this City, or of any of its subdivisions, boards or commissions may make claim and shall upon approval of such claim, be paid as an allowance for meals and lodging while engaged within this State, in the discharge of a public duty away from their normal working and living residence for all or any part of any quarter of a day at the rates specified by state law.
Verifications of claims shall not be required for the first three quarters listed above and only a lodging receipt shall be required for the fourth quarter.
Such persons engaged in travel outside of the state shall not claim a sum in excess of that allowed by state law per day for meals and in addition thereto actual lodging expenses. Verification by receipt for such out-of-state travel expenses shall be required only for lodging expenses claimed. Verification of any other type of expenses not prescribed by this section shall be by receipt.
Any person filing a false claim with the City for mileage or expenses as herein permitted is guilty of an infraction.
1.0606 Personal Interest in Contract by Public Officer - Penalty
No contract for the furnishing of supplies to the City, or buying of property from the City shall be entered into by any officer of the municipality, provided, however, that such contracts may be entered into with an officer of the City, if such contract is unanimously approved by other members of the City Council of the City by a finding unanimously adopted by such other members, and entered in the official minutes of the City Council, to be necessary for the reason that the services or property are not otherwise available at equal cost. No City officer shall refuse or fail to disclose to the governing board to which he or she is a member, any personal interest, direct or indirect, in any contract requiring the expenditure of municipal funds. Any person who shall violate any provision of this section shall be guilty of an infraction and shall, in addition, be subject to removal from office.
1.0607 Retiring Officer to Turn Over Books
Any person having been an officer of the City shall, within five days after notification and request, deliver to his successor in office, all property, books and effects of every description in his possession belonging to the City or
13
appertaining to his office; and upon his refusal to do so, shall be liable for all damages caused thereby, and guilty of an infraction.
1.0608 Administrative Duties, Powers, and Privileges of Officers
Each officer shall:
1. Perform all duties required of his or her office by law or ordinance and such other duties not in conflict as may be required by the City.
2. Be immediately responsible to the City for the effective administration of their departments and all activities assigned thereto.
3. Keep informed as to the latest practices in their particular field and shall inaugurate with approval of the City such new practices as appear to be of benefit to their service and to the public.
4. Submit such reports of activities of their departments as the City may request.
5. Be responsible for the proper maintenance of all City property and equipment used in their departments.
6. Establish and maintain records in sufficient detail so as to furnish all information needed for proper control of department activities and to form a basis for reports to the City.
7. Cooperate with other officers, departments and employees.
8. Have power to direct and supervise all department subordinates.
9. Be available during the hours designated by the City Council.
1.0609 Obstructing a Public Official - Prohibited
Every person who willfully delays or obstructs a public officer in the discharge or attempt to discharge any duty of his office shall be guilty of an infraction.
ARTICLE 7 - Purchasing and Disposition of Property
14
1.0701 Competitive Bidding Requirements
All purchase of and contracts for supplies and contractual services with a cost in excess of one hundred thousand dollars shall be based on competitive bids.
1.0702 Procedure
All supplies and contractual services except as otherwise provided herein, when the estimated cost thereof shall exceed $100,000.00 shall be purchased from the lowest responsible bidder after due notice inviting proposals. Due notice shall be given by advertising for the sale or purchase of the property or service by giving written notice in the official newspaper of the City for three (3) consecutive weeks and the opening of the bids so received not less than 21 days after the first publication thereof. The lowest responsible bidder shall be the bidder who, in addition to price, has the best ability, capacity and skill to perform the contract or provide the service required promptly or within the specified time without delay or interference. There shall also be considered character, integrity, reputation, experience and efficiency of the bidder, the quality of performance of previous contracts, sufficiency of financial resources and previous and existing compliance with state laws and City ordinances.
1.0703 Open Market Purchases - Emergency
When the City Council decides by unanimous vote that an emergency requires the immediate purchase of supplies or contractual services, the purchases may be made in the open market without competitive bidding.
1.0704 Accounts Against City to be in Writing
Accounts, claims and demands against the City for any property or services for which the City shall be liable, shall be made in writing and shall include an itemized statement of the property or services provided.
1.0705 Conveyance, Sale, Lease, or Disposal of Property
Real property belonging to the municipality shall be conveyed, sold, leased or disposed of, only as approved of by a two-thirds vote of all members of the City Council. Instruments affecting such conveyance, sale, lease or disposal shall be valid only when duly executed by the Mayor and attested by the City Auditor. Personal property shall be conveyed by a majority vote of all members of the Council. When the property to be disposed of, whether real or personal, is estimated by the Council to be of a value of less than $2,500.00, such property may be sold at private sale upon the proper resolution of the Council. In all other cases, such property may be sold only at public sale or as provided under NDCC Section 40-11-04.2. Bids for the purchase or lease of real property belonging to
15
the municipality, whether or not advertisement therefore has been made, shall be made directly to the City Council and submitted to the City Auditor, who shall present any and all such bids to the City Council at its next regularly scheduled meeting. When specific statutory provisions contained in the NDCC provide for a procedure which is in conflict with this section, governing the conveyance, sale, lease or disposal of real property, this section shall not apply insofar as it is in conflict with such state law. Said statutory procedures include the following:
1. Lease of airports or landing fields, or portions thereof shall be under authority granted in NDCC Section 2-02-06. Any such lease shall be in compliance with regulations and directives of appropriate federal agencies.
2. Conveyance of right of way for any state highway as provided in NDCC Section 24-01-46.
3. Leasing of oil and gas lands as provided in NDCC Sections 38-09-02 through 38-09-04 and NDCC Sections 38-09-14 through 38-09-20.
4. Conveyance of property to a municipal parking authority as provided in NDCC Section 40-61-05.
5. Lease of public buildings or portions thereof as provided in NDCC Chapter 48-08.
6. Granting of concessions for cafes, restaurants and confectioneries in public buildings or on public grounds as provided in NDCC Chapter 48-09.
7. Granting of right-of-way for a railway, telephone lines, electric light system or a gas or oil pipeline system as provided in NDCC Section 49-09-16.
1.0706 Real Property Transfer Requirements
The provisions of NDCC Sections 40-11-04.1 and 40-11-04.2 and all subsequent amendments are hereby incorporated by reference in this ordinance.
ARTICLE 8 - Municipal Elections
1.0801 Qualified Electors in Municipal Elections - Restrictions
The provisions of NDCC Section 40-21-02 and all subsequent amendments are hereby incorporated by reference in this ordinance.
16
Every resident of a municipality who is qualified to vote therein at general elections may vote at all municipal elections held therein.
1.0802 Polling Places - Polls Open - Notice
The provisions of NDCC Section 40-21-02 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Biennial municipal elections shall be held on the second Tuesday of June in each even numbered year at such place or places as the City Council shall designate. The polls shall be opened and closed as provided by state law for the opening and closing of polls at primary, general and special elections. Thirty days before the filing deadline for candidate names to be printed on the ballot, an official notice of this deadline must be published in the official newspaper as provided by NDCC Section 40-01-09. Ten days notice of the time and place of the election and of the offices to be filled at the election shall be given by the City Auditor by publication in the official newspaper of the City as provided by NDCC Section 40-01-09. The City may enter agreements to hold its elections with the County as provided in NDCC Section 40-21-02.
1.0803 Designation of Polling Places for Municipal Elections
The City Council of the City, at the time of calling any general or special municipal election, or prior to the time of registration for said election, if said registration is required by law, shall by resolution, designate such voting precincts and polling places for said election as it may deem necessary for the conduct of the same, and shall, in giving notice of said election, designate such voting precincts and polling places.
1.0804 Compensation of Inspectors, Judges and Clerks at Municipal Elections
The provisions of NDCC Section 40-21-05 and all subsequent amendments are hereby incorporated by reference in this ordinance.
Each inspector, judge or clerk of any regular or special municipal election shall receive compensation as determined for election officials in NDCC Section 16.1-05-05. The amounts determined to be due election officials at municipal elections shall be paid from the funds of the municipality holding the election. In the event a special municipal election is held on the same date as a statewide, district wide or countywide election, and if the same election officials perform services for both elections, the City shall not be required to pay the elections officials, except for any extra officials necessary for such special municipal election.
17
1.0805 Reference to Party Ballot or Affiliation in Petition of Candidate for Municipal Office Prohibited
The provisions of NDCC Section 40-21-06 and all subsequent amendments are hereby incorporated by reference in this ordinance.
No reference shall be made to a party ballot or to the party affiliation of a candidate in a petition to be filed or in behalf of a candidate for nomination to a public office of the City.
1.0806 Petition for Nomination of Elected Official in Municipalities - Signatures Required - Contents
The provisions of NDCC Section 40-21-07 and all subsequent amendments are hereby incorporated by reference in this ordinance.
A candidate for any public office in the City may be nominated by filing with the City Auditor, at least sixty days and before four p.m. on the sixtieth day prior to the holding of the election, a petition signed by not less than ten percent of the number of qualified electors who voted for that office in the last City election. Qualified electors who sign such a petition shall reside within the ward or precinct in and for which such officer is to be elected, if the election is by wards, or within the corporate limits of the City if the officer is elected at large. If a petition is mailed, it shall be in the possession of the City Auditor before four p.m. on the sixtieth day prior to the holding of the election. In no case shall more than three hundred signatures be required, and such signatures may be on separate sheets of paper. Each qualified elector who signs a petition shall add to the petition the petitioner’s mailing address. If a City election is not held in conjunction with a state or county election, a candidate may be nominated by filing the required petition with the City Auditor at least thirty-three days and before four p.m. on the thirty-third day before the holding of the election.
1.0807 Ballots in Municipalities - Makeup
The provision of NDCC Section 40-21-08 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The City Auditor shall place only the names of the persons nominated upon the ballot. The auditor shall arrange the offices upon the ballot in the order in which they are named in the statutes. The auditor shall determine the arrangement of the names of the candidates upon the ballot by conducting a drawing within five days following the last day for the filing of the nomination papers. The City Auditor shall set the date, time and location for conducting the drawing and shall give advance notice of the drawing to the candidates involved.
18
1.0808 Clerks Appointed to Fill Vacancies - Oath - Powers and Duties of Judges and Clerks of Municipal Elections
The provisions of NDCC Section 40-21-11 and all subsequent amendments are hereby incorporated by reference in this ordinance.
When necessary, the judges of election at a municipal election shall appoint clerks to fill vacancies. The judges and clerks of a municipal election shall take the same oath and have the same powers and authority as judges and clerks of general state elections.
1.0809 Counting Ballots - Returns - Canvass of Returns by City Council of Municipality - Agreement with the County
The provisions of NDCC Section 40-21-12 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The ballots cast in a municipal election shall be counted and the returns of the election prepared by the election board immediately after the closing of the polls. The ballots and the returns of the election shall be returned to the City Auditor under seal before four p.m. on the second day after the election. Thereafter, the City Council of the municipality shall canvass the returns and declare the result of the election and cause a statement thereof to be entered in its books of minutes.
If the City election is held in conjunction with a state or county election, the City Council shall enter into an agreement with the City Council of the county concerning canvassing, the sharing of election personnel, the printing of election materials, the publishing of legal notices and the apportioning of election expenses.
1.0810 Municipal Elections to be Governed by Rules Applicable to County Elections - Absent Voting
The provisions of NDCC Section 40-21-13 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The manner of conducting, voting at, keeping poll lists and canvassing votes at municipal elections, recounts and contests of the results of such elections shall be governed, as nearly as possible and except as otherwise provided in this chapter, by the laws of this state applicable to elections and contests in the case of county officers. Absent voters’ ballots must be available in municipal elections in accordance with the provisions of Chapter 16.1-07 as amended.
19
1.0811 City Auditor to Notify of Election or Appointments
The provisions of NDCC Section 40-21-14 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The City Auditor, within five days after the result of an election is declared or the appointment of an officer is made within the municipality, shall notify each person elected or appointed to municipal office of his election or appointment. Within the same period of time, the City Auditor shall also notify the state Supreme Court of the election or appointment of any municipal judge or alternate judge.
1.0812 New Election Upon Failure to Elect
The provisions of NDCC Section 40-21-15 and all subsequent amendments are hereby incorporated by reference in this ordinance.
If there is a failure to elect an officer required to be elected, the City Council of the municipality may order a new election.
1.0813 Special Elections Conducted in Same Manner as General Elections
The provisions of NDCC Section 40-21-16 and all subsequent amendments are hereby incorporated by reference in this ordinance.
Special municipal elections to fill vacancies or for any other purpose shall be held and conducted by the inspectors and judges of the election, and the returns shall be made in the same form and manner as at regular municipal elections.
1.0814 Highest Number of Votes Elects in Municipal Election - Procedure on Tie Vote
The provisions of NDCC Section 40-21-17 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The person having the highest number of votes for any municipal office shall be declared elected to such office. In case of a tie vote in the election of any municipal officer, a recount must be conducted pursuant to NDCC Section 16.1-16-01. If a recount results in a tie vote, the choice shall be determined by a name draw in the presence of the City Council and in such manner as it shall direct.
20
ARTICLE 9 - Records Management Policy
1.0901 Adoption of Policy
The management of records in the City shall comply with the provisions of the City Records Management Manual published by the Records Management Division of the North Dakota Information Technology Department, a copy of which is on file with the City auditor. That publication is hereby made a part of this chapter by reference with the exception of any sections hereinafter set forth affecting local conditions in the City, which are amended, deleted, or added to, for use and application in the City, and the City hereby adopts said manual as so modified from time to time by resolution of the City Council.
21
CHAPTER TWO
ORDINANCES
ARTICLE 1 - Procedure
2.0101 Enacting Clause for Ordinances
2.0102 Procedure in Passing Ordinances
2.0103 Yea and Nay Vote on Passage - When Required
2.0104 Reconsideration or Rescinding Vote
2.0105 Publication of Ordinances
2.0106 Effective Date of Ordinances
2.0107 Effect of Repeal
2.0108 Enactment and Revision of Ordinances
2.0109 Action for Violation of Ordinance in Corporate Name - Previous Prosecution, Recovery or Acquittal No Defense
2.0110 Summons to Issue on Violation of Ordinance - When Warrant of Arrest to Issue
2.0111 Commitment of Guilty Person for Non-payment of Fines or Costs
2.0112 Costs of Prosecution
2.0113 Judgment of Conviction
2.0114 Refusal to Work
2.0115 Fines and Forfeitures for Violation of Ordinances Paid into Municipal Treasury
2.0116 Deferring or Suspending Sentence
22
CHAPTER TWO
ORDINANCES
ARTICLE 1 - Procedure
2.0101 Enacting Clause for Ordinances
The enacting clause for every ordinance adopted by the City of Center shall be “Be it ordained by the City Council of the City of Center.” Such caption, however, may be omitted where the ordinances are published in book form or are revised and digested.
2.0102 Procedure in Passing Ordinances
All ordinances shall be read twice and the second reading and final passage shall not be had less than one week after the first reading. After the first reading and before final passage, an ordinance may be amended. Except as otherwise specifically provided, a majority of all of the members of the City Council must concur in the passage of an ordinance, and in the creation of any liability against the City, and in expending and in appropriating money.
2.0103 Yea and Nay Vote on Passage - When Required
The yea and nay shall be taken and entered on the journal of the City Council’s proceedings upon the passage of all ordinances and upon all propositions creating any liability against the City, or providing for the expenditure or appropriation of money, and in all other cases at the request of any member. The member of the City Council who passes his vote or who remains silent when the roll call on the vote is taken, shall be deemed to have voted yea, and a record of yea shall be entered in the journal.
2.0104 Reconsideration or Rescinding Vote
No vote of the City Council shall be reconsidered or rescinded at a special meeting unless at such special meeting there is present as large a number of members as were present when such vote was taken.
2.0105 Publication of Ordinances
The title and penalty clause of every ordinance imposing any penalty, fine, imprisonment or forfeiture for violation of its provisions after the final adoption of such ordinance, shall be published in one issue of the official paper of the municipality.
23
2.0106 Effective Date of Ordinances
Ordinances finally approved by the City Council of a municipality and which require publication shall take effect and be in force from and after the publication thereof, unless otherwise expressly provided in the ordinance. Ordinances which do not require publication shall take effect and be in force from and after the final approval thereof unless otherwise expressly provided therein.
2.0107 Effect of Repeal
When any ordinance repealing a former ordinance, clause or provision shall itself be repealed, such repeal shall not be construed to revive such former ordinance, clause or provision, unless it shall be expressly so provided.
2.0108 Enactment and Revision of Ordinances
The provisions of NDCC Section 40-11-09 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The Mayor of the City may appoint, by and with the advice and consent of the City Council of the municipality, one or more competent persons to prepare and submit to the City Council for its adoption or rejection, an ordinance for the revision or amendment of existing ordinances or for the enactment of new and additional ordinances for such municipality. The attorney for the municipality, if it has an attorney, shall be appointed as one of the persons to prepare and submit such ordinance. The compensation of the reviser or revisers, including that of the attorney, shall be determined by the City Council and shall be paid out of the municipal treasury. Such revision, including any additional ordinances and amendments to existing ordinances contained therein, may be passed as a single ordinance and may be published in pamphlet or book form, by and under the authority of the City Council, and shall be valid and effective without publication in a newspaper or posting.
2.0109 Action for Violation of Ordinance in Corporate Name - Previous Prosecution, Recovery or Acquittal No Defense
The provisions of NDCC Section 40-11-10 and all subsequent amendments are hereby incorporated by reference into this ordinance.
Any action brought to recover any fine, to enforce any penalty, or to punish any violation of an ordinance of the City shall be brought in the corporate name of the City of Center as plaintiff. A prosecution, recovery, or acquittal for the violation of any such ordinance may not constitute a defense to any other prosecution of the same person for any other violation of any such ordinance, notwithstanding that the different claims for relief existed at the time of the
24
previous prosecution and, if united, would not have exceeded the jurisdiction of the court.
2.0110 Summons to Issue on Violation of Ordinance - When Warrant of Arrest to Issue
The provisions of NDCC Section 40-11-11 and all subsequent amendments are hereby incorporated by reference in this ordinance.
In all actions for the violation of an ordinance, the first process shall be a summons, but a warrant for the arrest of the offender shall be issued upon the sworn complaint of any person that an ordinance has been violated and that the person making the complaint has reasonable grounds to believe the person charged is guilty of such violation. Any person arrested under a warrant shall be taken without unnecessary delay before the proper officer to be tried for the alleged offense.
2.0111 Commitment of Guilty Person for Non-payment of Fines or Costs
The provisions of NDCC Section 40-11-12 and all subsequent amendments are hereby incorporated by reference in this ordinance.
Any person upon whom any fine or costs, or both, has been imposed for violation of a City ordinance may, after hearing, be committed upon order of the court to jail or other place provided by the City for the incarceration of offenders until the fine or costs, or both, are fully paid or discharged by labor as provided in Section 2.0113. The court may not commit a person under this section when the sole reason for his nonpayment of fine or costs, or both, is his indigence. An order of commitment under this section shall not be for a period in excess of thirty days. As used in this section, “fine” does not include a fee established pursuant to subsection 2 of NDCC Section 40-05-06.
2.0112 Costs of Prosecution
In every case of conviction of a violation of any ordinance, or any part thereof, the cost of prosecution shall be assessed against the person convicted as part of the punishment.
2.0113 Judgment of Conviction
In all trials for offenses under the ordinances of the City, if the defendant is found guilty, the municipal judge shall render judgment accordingly. It shall be a part of the judgment that the defendant stands committed until such judgment is complied with, and, at the discretion of the municipal court, he may be required to work for the municipality at such labor as the defendant’s strength and health will permit under the provisions of NDCC Section 40-18-12.
25
2.0114 Refusal to Work
Any person refusing to perform manual labor in accordance with the sentence of the court shall be deemed in contempt of court and shall be punished accordingly. No credit shall be allowed such person on account for fines and costs for the days that such person refuses to perform manual labor, in accordance with the sentence of the court.
2.0115 Fines and Forfeitures for Violation of Ordinances Paid into Municipal Treasury
All fines, penalties and forfeitures collected for offenses against the ordinances of the City shall be paid into the City’s treasury each month.
2.0116 Deferring or Suspending Sentence
The municipal judge may, upon the conviction of any person of any offense against any of the ordinances of the City, then and there impose a sentence of imprisonment as may be regulated by such ordinances, or defer imposition of sentence or suspend the sentence imposed on such person for a period of not to exceed ninety (90) days from the date of such conviction. The municipal judge may, during such period, allow the defendant to go upon his own recognizance, or upon such bail as may be regulated by law or the ordinances of the City, or may suspend or defer such sentence upon such terms and conditions as the judge may prescribe. The municipal judge may, at or before the expiration of such period, have the defendant brought before him and commit such defendant or cause such sentence of imprisonment to be then and there imposed.
26
CHAPTER THREE
PUBLIC PLACES AND PROPERTY
ARTICLE 1 - Construction and Repair
3.0101 Supervision
3.0102 Construction and Repair - Permits
3.0103 Bond
3.0104 Specifications
3.0105 Duty of Owner to Maintain
3.0106 Application for Permit
3.0107 Standards for Issuance of Permit
3.0108 Sidewalks Built to Grade Specifications
3.0109 Materials and Manner of Construction
3.0110 City Contractor
ARTICLE 2 - Use and Care of Streets, Sidewalks and Public Places
3.0201 Obstructions - Penalty
3.0202 Encroachments
3.0203 Wires – Depths for Buried Utility Lines
3.0204 Littering - Prohibited
3.0205 Burning
3.0206 Heavy Vehicles
3.0207 Removal of Snow and Ice from Sidewalk
3.0208 Removal of Snow and Ice by City
3.0209 Assessments by Street Commissioner When Work is Done by City
3.0210 Snow and Ice Removal Assessments, Publication by Auditor, Hearing by City Council
3.0211 Street Cleaning - Snow Removal
3.0212 Notice - Snow Removal or Street Cleaning
3.0213 Impounding Vehicles and Equipment
3.0214 Blocking Streets
3.0215 Excavations - Permit
3.0216 Guarding of Excavations and Openings
3.0217 Application for Excavation Permits
3.0218 Fees for Excavation Permits
3.0219 Bond - Excavations
3.0220 Deposit - Excavations
3.0221 Making Excavations - Notice
3.0222 Restoration of Excavations
3.0223 Supervision of Excavation Work
3.0224 City Parks - Hours
3.0225 City Buildings, Equipment and Vehicles - Smoking
27
ARTICLE 3 - Unclaimed and Abandoned Property
3.0301 Unclaimed and Abandoned Property - Defined
3.0302 Seizure of Unclaimed or Abandoned Property
3.0303 Holding of Personal Property - Notice of Sale
3.0304 Report of Abandoned Property Sale
3.0305 Bill of Sale - Abandoned Property
3.0306 Proceeds of Sale - Abandoned Property
3.0307 Redemption of Personal Property
3.0308 Annual Report - Unclaimed and Abandoned Property
ARTICLE 4- House Numbering
3.0401 Definition
3.0402 System of Numbering
3.0403 Dividing Streets and Avenues
3.0404 Figures to Be Used
28
CHAPTER THREE
PUBLIC PLACES AND PROPERTY
ARTICLE 1 - Construction and Repair
3.0101 Supervision
All construction maintenance and repair of public streets, alleys, sidewalks and other public ways shall be under the supervision of the City Engineer or street commissioner (wherever “street commissioner” is referenced in these Ordinances, it shall be considered as referring to that member of the City Council assigned the street portfolio). He or she shall be charged with the enforcement of all ordinance provisions relating to such public places (except traffic ordinances) and is hereby authorized to enforce such ordinance.
3.0102 Construction and Repair - Permits
It shall be unlawful to construct, reconstruct, alter, grade or repair any public street, sidewalk, driveway, curbs or gutters without having first secured a permit therefore, unless said work is performed by a City contractor. Applications for such permits shall be made to the Auditor and shall state the location of the intended pavement or repair, the extent thereof and the person or firm who is to do the actual construction work. No such permits shall be issued except where the work will conform to the ordinances of the City.
3.0103 Bond
Each applicant shall file a bond in the amount of 100% of the project cost with surety to be approved by the City Council conditioned to indemnify the City for any loss or damage resulting from the work undertaken or the manner of doing the same.
3.0104 Specifications
All construction, maintenance and repair herein shall be made in conformity with specifications laid out or approved from time to time by the City Council.
3.0105 Duty of Owner to Maintain
It shall be the duty of the owner of any property along which a sidewalk has been constructed to maintain the same in good repair and safe condition. Should any such owner fail so to maintain such sidewalks, the city engineer or street commissioner shall direct him to make such repairs as may be necessary to restore such sidewalk to a safe condition. Should he fail, within a reasonable
29
time, to follow the directions of the city engineer or street commissioner, the city engineer or street commissioner shall report the facts to the City Council, which shall then proceed as provided in Chapter 40-29 of the NDCC.
3.0106 Application for Permit
An applicant for a permit hereunder shall file with the City Auditor an application showing:
1. The name and address of the owner, or agent in charge, of the property abutting the proposed work area.
2. The name and address of the party doing the work.
3. The location of the work area.
4. Attached plans or sufficient sketches showing details of the proposed alterations.
5. The estimated cost of the alterations.
6. Such other information as the city engineer or street commissioner shall find reasonably necessary to determine whether a permit should be issued hereunder.
3.0107 Standards for Issuance of Permit
The city engineer or street commissioner shall issue a permit hereunder when it is determined:
1. That the work will be done according to the standard specifications of the City for public work of like character.
2. That the operation will not unreasonably interfere with vehicular and pedestrian traffic, the demand and necessity for parking spaces, and the means of ingress and egress to and from the property affected and adjacent properties.
3. That the health, welfare and safety of the public will not be unreasonably impaired.
3.0108 Sidewalks Built to Grade Specifications
All sidewalks shall be constructed in accordance with the elevations and grade therefore to be furnished by the city engineer and shall be constructed
30
under his direction and supervision or under the direction and supervision of the street commissioner. All sidewalks shall meet the following requirements:
1. All sidewalks shall be of concrete and of at least four (4) inches in thickness.
2. All sidewalks in residential areas shall be constructed not less than four (4) feet in width and shall have a minimum slope one-fourth (1/4) inch per foot from the inside edge toward the street.
3. All sidewalks shall be laid out as follows:
a. In locations where the right-of-way is sixty (60) feet or less the sidewalks shall be constructed on the property line.
b. In locations where the right-of-way is greater than sixty (60) feet the sidewalk shall be constructed eighteen (18) inches out from the property line.
c. In no case in the residential district shall the sidewalk be constructed adjacent to the curb unless right-of-way and topographic features require it.
d. Notwithstanding any other provision herein all sidewalks shall be set out so that they are in conformity with existing sidewalks to which they may attach.
4. All sidewalks in commercial and/or industrial districts shall be constructed from the property line to the back of the curb and the width of sidewalk shall be governed by the width of street section; provided however, in areas where commercial development is not complete the entire sidewalk need not be constructed. In such instance, a section six (6) feet in width adjacent to the curb shall be constructed thus leaving an area for structural foundations.
3.0109 Materials and Manner of Construction
The kind and quality of material and the manner in which driveways, curb and gutter, relaying of block walks and paving repairs shall be constructed shall be determined by the city engineer.
3.0110 City Contractor
The City Auditor shall receive bids for the construction of sidewalks, driveways, curb and gutter and paving repairs as the City may find necessary to have done. Such bids shall be made upon blanks furnished by the city engineer
31
or street commissioner and shall conform to specifications filed with the City Auditor by the city engineer or street commissioner and approved by the City Council.
All sidewalks, driveways, curb and gutter and alley returns lying between the property line and the abutting street hereafter constructed within the City must conform to this chapter, and the detailed specifications must be filed with the city engineer, and approved by the City Council prior to construction. When any contract for the construction of sidewalks, driveways, curb and gutter, relaying of block walks and paving repairs is about to be entered into by the City in accordance with the provisions of the laws of this state, the contractor to whom any such contract shall be awarded shall be required, before such contract is entered into, to give in addition to the contract bond required by the laws of the state of North Dakota, an additional bond in an amount to be determined by the City Council, running to the City, conditioned that said contractor shall maintain and keep in good repair, for a period of two (2) years from date of final acceptance all sidewalks, driveways, curb and gutter and paving repairs so constructed by such contractor under the terms of such contract, and that in case of default on the part of such contractor to so maintain and keep such improvements in good repair made by him for the said period of two (2) years, or in case they shall within said time begin to crumble or disintegrate or become cracked or broken to such extent that, in the opinion of the city engineer or street commissioner, the same is not a satisfactory compliance with the specifications for the construction thereof, then the city engineer or street commissioner may direct that such sidewalks, driveways, curb and gutters or paving repairs be immediately repaired or re-laid in whole or in part as he shall deem best, and the contractor shall immediately cause the same to be repaired. Failure to so repair or to relay the same, the City at any time within said two (2) year period or thereafter, may cause the same to be repaired or re-laid, and the cost thereof, whether done by the City directly or through a contract, may be recovered against said contractor and the filed surety bond.
ARTICLE 2 - Use and Care of Streets, Sidewalks and Public Places
3.0201 Obstructions - Penalty
It shall be unlawful for any person, firm or corporation to cause, create or maintain any obstruction of any street, alley, sidewalk or other public way, except as may be specified by ordinance or by the city engineer or street commissioner.
Any person violating the provisions of this section shall be guilty of an infraction and upon conviction thereof, shall be fined not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500.00).
32
3.0202 Encroachments
It shall be unlawful to erect or maintain any building or structure that encroaches upon any public street or property without first having secured permission from the City Council.
3.0203 Wires – Depths for Buried Utility Lines
It shall be unlawful to erect any poles or wires or maintain any poles or wires over any public place, street, alley or other public way without having first secured permission from the City Council.
Any person or company which maintains poles and wires in the streets, alleys or other public places, shall keep such wires and poles free from and away from any trees and shrubs in such places as far as may be possible, and keep all such trees and shrubs near such wires and poles properly trimmed so that no injury is done to the poles or wires or to the shrubs and trees by their contact.
Any underground gas or utility transmission line of any type shall be buried to a depth of at least 18 inches.
3.0204 Littering - Prohibited
No person, firm or corporation shall throw or deposit or cause to be thrown or deposited any garbage, glass, bottles, boxes or rubbish of any kind upon any street or alley in the City. Any person violating the provisions of this section shall be guilty of an infraction.
3.0205 Burning
It shall be unlawful for any person, firm or corporation to burn any leaves, paper, rubbish or other substances upon any of the public streets, sidewalks or alleys in the City. Any person violating the provisions of this section shall be guilty of an infraction.
3.0206 Heavy Vehicles
No person, firm or corporation shall move, or cause to be moved over the paved streets, sidewalks, crosswalks, culverts, bridges and viaducts within the City any engine, tractor, wagon, truck or other vehicle, object or thing which will tend to injure the paving, sidewalks, crosswalks, culverts, bridges or viaducts over which the same are transported, or which exceeds in weight, 16,000 pounds per axle and exceeds 750 pounds per inch of tire widths, or any vehicle to the wheels of which are attached spurs, bars, angle irons or cleats which will tend to mar or deface the paving, sidewalks, crosswalks, culverts, bridges or viaducts, except under the direction and permission of the City Council and, in addition
33
thereto, shall pay or cause to be paid to said City, upon demand, any and all damages done to the paving, sidewalks, crosswalks, culverts, bridges or viaducts, provided that when the specified load limits herein contained will cause damage to the City’s paved streets, the City Council by resolution adopted, and made public, may lower said load limits for such period of time it may deem necessary. The provisions of this section shall not apply to state and federal highways through the City.
3.0207 Removal of Snow and Ice from Sidewalk
It shall be, and hereby is declared to be, the duty of the owner or occupant of each lot in the City to remove from the sidewalk in front of or along the same, any ice or snow which forms, accumulates or obstructs such sidewalk, within twenty-four (24) hours after the ice forms or the snow ceases to fall thereon. Where the ice accumulated is of such character as to make the removal thereof practically impossible, the sprinkling of ashes or sand thereon within the time specified for removal in such manner as to make such sidewalk safe for the travel of pedestrians thereon shall be deemed compliance with the provisions of this article. No owner or occupant shall blow or shovel snow into public streets except with permission of the City.
3.0208 Removal of Snow and Ice by City
In case the owner of any lot in the City refuses or neglects to remove such ice from such sidewalk in front of or along a lot therein, the ice or snow therefrom within the same time above stated or refuses to sprinkle ashes or sand on the same within the time specified for removal in such manner as to make such sidewalk safe for travel of pedestrians thereon, the same may be removed by or under the direction of the city engineer or street commissioner, or ashes or sand sprinkled thereon, and the necessary expenses shall be charged against the abutting property by special assessment in the manner prescribed by law.
3.0209 Assessments by Street Commissioner When Work is Done by City
Whenever the street commissioner shall, pursuant to Section 3.0211 of this article, remove or cause to be removed any snow or ice from any sidewalk or sidewalks along or in front of any building, grounds or premises, he shall assess the cost of the same against said property, and on or before the first day of May in each year, make and file in the office of the City Auditor a list of the property chargeable with such expense, the actual cost and expense of such removal and a description of the lot, lots or parcels of land along or in front of which is the sidewalk or sidewalks from which snow or ice has been removed. (Source: NDCC Section 40-29-18)
34
3.0210 Snow and Ice Removal Assessments, Publication by Auditor, Hearing by City Council
The City Auditor shall give notice by publication in the official newspaper of the hearing and confirmation of such report and assessment at the regular June meeting of the City Council, notifying all persons objecting thereto to appear and present their objections. The notice shall be published once each week for two (2) consecutive weeks, the last publication to be not less than eight (8) days before the time fixed for the hearing. At the June meeting of the City Council or at such later meeting as the hearing and confirmation of such assessment may be adjourned to, the City Council shall consider said assessment and shall hear any objections thereto or to any part thereof, and after revising and correcting the same, if necessary, it shall approve and confirm the list. The City Auditor shall attach to such list his or her certificate that the same is correct as confirmed by the City Council and shall file said assessment list in his office. The assessment shall be certified to the county auditor by the City Auditor in the manner provided in NDCC Section 40-24-11. (Source: NDCC Sections 40-29-19 and 20)
3.0211 Street Cleaning - Snow Removal
Whenever, in the judgment of the City Council or the city engineer or street commissioner, it shall be necessary that streets, alleys or public ways in the City shall be cleared of snow or ice or be cleaned by the use of street sweepers or other methods of cleaning such streets, or for marking for traffic purposes, the ordinances of the City regulating the parking of automobiles, trucks and other motor vehicles shall be suspended and it shall be unlawful for any automobile, truck or other motor vehicle to be parked or left standing between the hours hereinafter mentioned and during the period of time during which the said parking ordinances are suspended.
3.0212 Notice - Snow Removal or Street Cleaning
Whenever it becomes necessary to remove snow or ice or to sweep and clean streets, or to mark streets for traffic purposes there shall be designated by the city engineer or street commissioner the area and streets to be cleared of snow or ice or cleaned as aforesaid and the time during which such snow or ice removal and street cleaning and marking of streets shall be done and posting of such information in the area affected.
3.0213 Impounding Vehicles and Equipment
Whenever any parked automobile, truck, machinery, vehicle or equipment shall be found in any place prohibited by these restrictions, and during the hours as provided herein, the same shall be impounded by the City at a place to be provided and it shall be unlawful for any person, firm or corporation to remove or
35
attempt to remove any truck, automobile, machinery, vehicle or equipment from the place where impounded without first paying the cost of such impounding.
3.0214 Blocking Streets
No driver of any vehicle shall stop the same on any street or alley of the City in such a manner as to hinder or prevent other vehicles or persons from passing at all times, unless in case of emergency or absolute necessity, nor shall any driver of any vehicle stop the same at any regular crossing of said street or alley, so as to prevent the free passage of persons traveling or passing on foot.
3.0215 Excavations - Permit
It shall be unlawful for any person, firm or corporation, except public utilities which have received a franchise from the City, to tunnel under or to make any excavation in any street, alley or other public place in the City without having obtained a permit as is herein required, or without complying with the provisions of this article or in violation of or variance from the terms of any such permit.
3.0216 Guarding of Excavations and Openings
It shall be unlawful for any person within the City limits to leave or keep open, uncovered or unguarded any cellar door, pit, grating, vault or other subterranean passage opening from, into or upon any street, alley or sidewalk, or upon any private property if not suitably guarded.
3.0217 Application for Excavation Permits
Applications for excavation permits shall be made to the Auditor, and shall describe the location of the intended excavation or tunnel, the size thereof, the purpose therefore, and the person, firm or corporation doing the actual excavating work and the name of the person, firm or corporation for whom or which the work is being done, and shall contain an agreement that the applicant will comply with all ordinances and laws relating to the work to be done.
3.0218 Fees for Excavation Permits
The fee for excavation permits shall be as set by the City Council from time to time ($10.00 at the time of enactment of these Ordinances).
3.0219 Bond - Excavations
No excavation permit shall be issued unless and until the applicant therefore has filed with the Auditor a bond in the sum of ten thousand dollars ($10,000.00), conditioned to indemnify the City for any loss, liability or damage that may result or accrue from or because of the making, existence or manner of
36
guarding or constructing any such tunnel or excavations. Such bond shall have as surety a corporation licensed to do business in the state as a surety company.
3.0220 Deposit - Excavations
No such permit shall be issued unless and until the applicant therefore has deposited with the Auditor a cash deposit or bond in the sum of $500.00 to insure the proper restoration of the ground and laying of the pavement if any. From this deposit shall be deducted the expense to the City of relaying the surface of the ground or pavement and of making the refill if this is done by the City or at its expense, and the balance shall be returned to the applicant without interest after the tunnel or excavation is completely refilled and the surface or pavement is restored.
3.0221 Making Excavations - Notice
It shall be unlawful to make any such excavation or tunnel in any way contrary to or at variance with the terms of the permit therefore. Proper bracing shall be maintained to prevent the collapse of adjoining ground, and in excavations, the excavation shall not have anywhere below the surface any portion which extends beyond the opening at the surface.
No injury shall be done to any pipes, cables or conduits in the making of such excavations or tunnels, and notice shall be given to the persons or utility maintaining any such pipes, cables or conduits or to the City department or officer charged with the care thereof, which are or may be endangered or affected by the making of any such excavation or tunnel before such pipes, cables or conduits shall be disturbed. Notice shall be given as required by NDCC Chapter 49-23 (“one-call” excavation notice system).
No unnecessary damage or injury shall be done to any tree to shrub or the roots thereof.
3.0222 Restoration of Excavations
Any person, firm or corporation making any excavation or tunnel in or under any public street, alley or other public place in the City shall restore the surface to its original condition if there is no pavement there. Refills shall be properly tamped down, and any bracing in such tunnel or excavation shall be left in the ground.
Any opening in a paved or improved portion of a street shall be repaired and the surface re-laid by the applicant, in compliance with the ordinances of the City and under the supervision of the street commissioner or city engineer.
37
3.0223 Supervision of Excavation Work
The street commissioner or the city engineer shall from time to time inspect or cause to be inspected, all excavations and tunnels being made in or under any public street, alley or other public place in the City to see to the enforcement of the provisions of this article. Notice shall be given to either of them at least ten (10) hours before the work of refilling any such tunnel or excavation commences.
3.0224 City Parks - Hours
All City parks shall have established hours of public access. The hours shall be as determined from time to time by the Center Park Board. Notice of the same may be published in the official newspaper or posted at the public parks. Any variance from the above hours of use shall be under special permission granted by the Park Board.
3.0225 City Buildings, Equipment and Vehicles - Smoking
Smoking is not permitted in City buildings, equipment and vehicles, except in designated smoking areas. The public official having general supervisory authority over any City buildings, equipment or vehicles may designate a smoking area by posting a sign in the smoking area which states “Designated Smoking Area.” Any designated smoking area in a place of public assembly may not occupy more than fifty percent of the total area available to the public and must be situated to minimize smoke drift. (Source: NDCC Section 23-12-10)
ARTICLE 3 - Unclaimed and Abandoned Property
3.0301 Unclaimed and Abandoned Property - Defined
Personal property left upon the streets, alleys or other public ways in the City shall be deemed to be unclaimed or abandoned within the meaning of this article when the same is permitted to remain in any one place upon said streets, alleys or other public ways for a period of ten (10) days or more.
3.0302 Seizure of Unclaimed or Abandoned Property
Whenever any unclaimed or abandoned personal property is found upon the streets, alleys or other public ways of the City, the same shall be seized and possession thereof taken by any police officer, street commissioner or other officer of the City.
38
3.0303 Holding of Personal Property - Notice of Sale
Abandoned personal property shall be held by the City for a period of not less than sixty (60) days after its seizure as provided herein, and after the expiration of said sixty (60) days the City Auditor shall cause notice to be published in the official newspaper of said City, said notice specifying and stating the description of the property so seized and held, the location of the place where the same was seized or taken by said City, and a further notice that said property will be sold at public auction, to the highest bidder for cash, not less than ten (10) days from and after the date of the publication of such notice and the hour, date and place where said sale will be held. If prior approval is obtained from the City Council such unclaimed or abandoned property may be sold at a community auction provided that the City Auditor or member of the Council assigned the Police portfolio shall be responsible for the notice and reporting requirements of this article.
3.0304 Report of Abandoned Property Sale
At the time specified in said notice the said property shall be sold by the Auditor or Chief of Police at public auction, to the highest bidder for cash, and within three (3) days after the date of said sale, the officer making the sale shall make a report thereof to the City Council. The report shall contain the description of the property sold, the time and place of the sale, the name or names of the purchaser or purchasers and the amount received therefore. The report shall be made under oath and subscribed by the officer making such sale and shall be filed with the City Auditor within three (3) days after the date of such sale. The officer upon filing the report shall pay to the City Auditor the proceeds of said sale.
3.0305 Bill of Sale - Abandoned Property
Upon the receipt of the report as specified in Section 3.0304 hereof, the City Auditor shall prepare a bill of sale of the property sold conveying the same to such purchaser and the same shall be executed by the presiding officer of the City Council and attested to by the City Auditor and delivered to the purchaser.
3.0306 Proceeds of Sale - Abandoned Property
The City Auditor shall retain such money as is received from such sales in a separate account for a period of six (6) months from and after the time of such sale and if proceeds of such sale are not claimed as hereinafter provided by the owner of said property, the said money shall thereupon be transferred to the general fund of the City.
39
3.0307 Redemption of Personal Property
Any person owning such personal property seized as aforesaid, may at any time prior to the sale thereof, upon furnishing satisfactory proof of his ownership thereof to the City Council, reclaim such property upon paying the expenses incurred by the City for the seizure, storage or advertising the sale thereof and any person owning such property as aforesaid may at any time within six (6) months after such sale and upon making satisfactory proof to the City Council of his ownership thereof, claim the proceeds of such sale, upon payment to the City of the necessary expenses incurred by the City for the seizure, storage and sale of said property.
3.0308 Annual Report - Unclaimed and Abandoned Property
The Police Commissioner prior to June 1 of each year shall submit to the City Auditor a written list of all unclaimed and abandoned property held by the City which has not been sold pursuant to the provisions of this article. The City Auditor shall bring such list to the attention of the City Council at the next regular meeting.
ARTICLE 4 - House Numbering
3.0401 Definition
In this Article, the term “building” shall be defined as a major structure such as that used for human dwelling, commercial purposes, or public service. It shall not be construed as applying to one or two car garages, garden sheds, and the like.
3.0402 System of Numbering
The building on each lot or tract of land abutting any street or avenue in the City shall be assigned a number which shall be an official designation of such structure. The south side of an avenue or a street running east and west shall bear the odd numbers and the north side of such avenues or streets shall bear the even numbers. The east side of avenues running north and south shall bear the odd numbers and the west side of such avenues shall bear the even numbers. If two buildings shall occupy a lot or tract of land, then the extra building shall be given a number between that of the first building and the number of the building on the next lot. Entrances to separate sections of buildings (e.g. upper floors having separate street level entrances) shall be numbered as extra buildings.
40
3.0403 Dividing Streets and Avenues
The numbering on avenues running north and south for either direction shall begin at Main Street. The numbering of the streets running east and west for either direction shall begin at Center Avenue except south of Square Butte Creek the dividing line shall be Bridge Avenue. Numbering shall progress from block to block, commencing with one hundred (100) at the crossing of every street in either direction from said dividing lines. Long blocks shall be divided as thought the streets or avenues went through.
3.0404 Figures to Be Used
It shall be the duty of the owner and occupants of every house in the City to have placed thereon figures at least two and one-half (2½) inches high, showing the number of the house. The figures may be metal, wood, plastic, or other substantial material attached to the building or may be painted, stamped, or printed on glass or other substantial background and attached to the building on the side facing the street as near the front entrance as is practical. In cases where the building is not readily visible from the street the figures may be attached to other support on approval by the appropriate City authority.
41
CHAPTER FOUR
FIRE PROTECTION AND PREVENTION
ARTICLE 1 - Fire Limits
4.0101 Fire Limits
4.0102 Fire Limits - Erection of Buildings Within
4.0103 Alterations and Additions in Fire Limits
4.0104 Inspection of Premises, Materials, Discovery, Order
4.0105 Repairs to Damaged Buildings
ARTICLE 2- Fires in Public Places
4.0201 Smoking - Setting Fires
4.0202 Notice - Smoking Ordinance
4.0203 Bonfires Prohibited - Exception
4.0204 Hot Ashes and Other Dangerous Materials - Depositing of
ARTICLE 3 - Firearms, Fireworks and Explosives
4.0301 Exploding Firearms
4.0302 Blank Cartridges, Pistols, Etc. - Manufacture, Use and Sale of
4.0303 Fireworks Defined
4.0304 Fireworks - Discharging of, Sale of
4.0305 Exceptions to Fireworks Restrictions
4.0306 Penalty
ARTICLE 4 - Adoption of Electrical Code
4.0401 Electrical Code Adopted
ARTICLE 5 - Penalty for Violation of this Chapter
4.0501 Penalty - Violations of Fire Protection and Prevention Chapter
42
CHAPTER FOUR
FIRE PROTECTION AND PREVENTION
ARTICLE 1 - Fire Limits
4.0101 Fire Limits
All those parts of the City which have been zoned for commercial or industrial use or that may hereafter be so zoned.
4.0102 Fire Limits - Erection of Buildings Within
No buildings or parts of any buildings shall be erected within the fire limits unless the construction meets the provisions of the North Dakota State Building Code, which is the official building code of the City. Outbuildings may be erected of any other material, not necessarily of fireproof qualities, by obtaining a permit from the City Council upon application therefore which may be granted or refused in the City Council’s discretion.
4.0103 Alterations and Additions in Fire Limits
Within the fire limits no buildings or structure of frame construction or of unprotected metal construction shall be hereafter extended on any side unless the construction of such extension conforms to all requirements of this article for new construction. All ordinary construction buildings and all frame buildings hereafter built or altered in which the lower stories or portions thereof are used for business, and the stories above for residence purposes shall have all partitions and ceilings separating the business portions from the residence portions covered with metal lath and plaster or other equivalent fireproofing material.
4.0104 Inspection of Premises, Materials, Discovery, Order
The building official, or chief of fire department, or other designated official, shall as often as practical, inspect all buildings or structures during construction for which a permit has been issued to see that the provisions of law are complied with and that construction is prosecuted safely. All building materials shall be of good quality and shall conform to generally accepted standard specifications. Whenever in his opinion, by reason of defective or illegal work in violation of a provision of this article the continuance of a building operation is contrary to public welfare, he may order all further work to be stopped and may require suspension of work until the condition in violation has been remedied.
43
4.0105 Repairs to Damaged Buildings
It shall be unlawful to repair any existing frame building within the fire limits after the same has been damaged by any cause to fifty percent (50%) of its value. Any existing frame building damaged by fire otherwise over fifty percent (50%) of its value shall be torn down and removed.
ARTICLE 2 - Fires in Public Places
4.0201 Smoking - Setting Fires
Any person who, by smoking or attempting to light or to smoke cigarettes, cigars, pipes or tobacco in any manner, in which lighters or matches are employed who shall in any careless, negligent or reckless manner whatsoever, whether willfully or wantonly or not, set fire to any furniture, curtains, drapes, household fittings or furnishings whatsoever in any hotel, public rooming house, tenement house or any public building, so as to endanger life or property in any way or to any extent shall be guilty of violating this article.
4.0202 Notice - Smoking Ordinance
A plainly printed notice shall be posted in a conspicuous place in each sleeping room of all hotels, public rooming houses, lodging houses and other places of public assemblage within the City advising tenants of the provisions of this chapter.
4.0203 Bonfires Prohibited - Exception
No person shall kindle, maintain or assist in maintaining any bonfire or other exposed fire within the City except under the written permit of the Chief of Police under proper safeguards as he may direct. Permits may be granted only on condition that such permit carries an obligation on the part of the grantee to keep a sufficient safe control of said fire and to be responsible for all damages therefrom, and that all resultant embers shall be extinguished and the hot ashes removed or wet down at the close of said fire.
4.0204 Hot Ashes and Other Dangerous Materials - Depositing of
Ashes, smoldering coals or embers, greasy or oily substances and other matter liable to spontaneous ignition shall not be deposited or allowed to remain within ten (10) feet of any combustible materials or construction made up of combustible materials, except in metal or other non-combustible receptacles. Such receptacles shall be placed on non-combustible stands, unless resting on a non-combustible floor or on the ground outside the building, and shall be kept at least two (2) feet away from any combustible wall or partition.
44
ARTICLE 3 - Firearms, Fireworks and Explosives
4.0301 Exploding Firearms
It shall be unlawful for any person or persons to fire or discharge within the city limits of this City, any gun, pistol or other firearms of any description without the written permission of the City Council which permit shall limit the time of such firing and be subject to revocation by the City Council at any time after being granted. Provided, however, that nothing in this section shall be construed to apply to the firing of any gun or other firearms when done in cases of actual necessity or in the performance of lawful duty or by militia companies or veterans’ organizations when on parade.
4.0302 Blank Cartridges, Pistols, Etc. - Manufacture, Use and Sale of
No person except a licensed dealer shall manufacture, use, sell or keep for sale within the City any blank cartridges, pistols, blank cartridge revolver or other blank cartridge firearms, blank cartridge caps containing dynamite or firecrackers exceeding three (3) inches in length and exceeding one-half (1/2) inch in diameter.
4.0303 Fireworks Defined
As used in this article, the term “fireworks” means any substance or combination of substances or articles prepared for the purpose of producing a visible or an audible effect by explosion or detonation and includes blank cartridges, toy cannons and toy canes in which explosives are used, the type of balloons which require fire underneath to propel them, firecrackers, torpedoes, sky rockets, roman candles, daygo bombs or other fireworks of like construction, and any fireworks containing any explosive or compound, or any tablets, or other device containing any explosive substance and commonly used as fireworks. The term “fireworks” shall not include toy pistols, toy guns in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, and toy pistol caps which contain less than twenty-five hundredths of a grain of explosive composition per cap. (Source: NDCC Section 23-15-01)
4.0304 Fireworks - Discharging of, Sale of
The sale, use, firing or discharging of any rocket, firecracker, torpedoes, roman candles or of any such “Fourth of July” explosives whatsoever, or fireworks within the City limits is expressly prohibited at any time whatsoever, except for public displays specifically approved by the City.
45
4.0305 Exceptions to Fireworks Restriction
Nothing in this article shall be construed to prohibit the sale or use of fireworks to airplanes, railroads and other transportation agencies for signal purposes or illumination or the sale or use of blank cartridges for a show or theater or for signal or ceremonial purposes in athletics or sports or for use by military organizations.
4.0306 Penalty
Any person violating the provisions of this Article shall be guilty of an infraction.
ARTICLE 4 - Adoption of Electrical Code
4.0401 Electrical Code Adopted
There is hereby adopted the laws and regulations and wiring standards of North Dakota adopted by the State Electrical Board and the whole thereof of which not less than one (1) copy shall be on file in the office of the City Auditor of the City, and the same is hereby adopted as fully as if it were set out at length herein.
ARTICLE 5 - Penalty for Violation of this Chapter
4.0501 Penalty - Violations of Fire Protection and Prevention Chapter
Any person who shall violate any provisions of this chapter or fail to comply therewith or who shall violate or fail to comply with any order made thereunder or who shall build in violation of any detailed statement of specifications or plans submitted and approved thereunder or any certificate or permit issued thereunder and from which no appeal has been taken or who shall fail to comply with such an order as affirmed or modified by the City Council or by a court of competent jurisdiction, within the time fixed herein, shall severally for each and every such violation and noncompliance respectively, be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not to exceed thirty (30) days or by both such fine and imprisonment. The imposition of one penalty for any violation shall not excuse the violation or permit it to continue; and all such persons shall be required to correct or remedy such violations or defects within a reasonable time; and when not otherwise specified, each ten days that prohibited conditions are maintained shall constitute a separate offense.
The application of the above penalty shall not be held to prevent the enforced removal of prohibited conditions.
46
CHAPTER FIVE
POLICE DEPARTMENT
ARTICLE 1 - Organization and Regulations
5.0101 Establishment
5.0102 Additional Officers - Emergency
5.0103 Duties of Chief
5.0104 Rules and Regulations
5.0105 Duties of Police - General
5.0106 Duties of Police - Hot Pursuit - Defined
5.0107 Duties of Police - Service of Process, Etc.
ARTICLE 2 - Powers and Duties
5.0201 Money or Property of Arrested Persons
5.0202 Arrested Persons
5.0203 Stolen, Abandoned, Lost Property
5.0204 Traffic Administration
ARTICLE 3 - Miscellaneous
5.0301 False Alarms – Interference - Penalty
5.0302 Right of Way - Penalty
47
CHAPTER FIVE
POLICE DEPARTMENT
ARTICLE 1 - Organization and Regulations
5.0101 Establishment
The police department heretofore created for the City and by this chapter continued shall consist of the Chief of Police and as many police officers as may be authorized by the City Council.
5.0102 Additional Officers - Emergency
In case of riot or unusual or general disturbances of the peace, the Chief of Police shall have the power to appoint such other and additional police officers as deemed necessary for the preservation of the public peace.
5.0103 Duties of Chief
The Chief of Police shall keep available through contract an available jail with neighboring counties. The Chief of Police shall keep such records and make such reports concerning the activities of the department as may be required by statute or by the City Council. The chief shall be responsible for the performance by the police department of its functions and all persons who are members of the police department shall serve subject to the orders of the Chief of Police. The Chief of Police shall have the authority to administer oaths to police officers under the chief’s supervision.
5.0104 Rules and Regulations
The chief of the police department may make or prescribe rules and regulations for the department. Such rules, when approved by the City Council, shall be binding on members of the department. Such rules and regulations may cover, besides the conduct of the members, uniforms and equipment to be worn or carried, hours of service and all other similar matters necessary or desirable for the better efficiency of the department.
5.0105 Duties of Police - General
It shall be the duty of the police department, and each and every member of the police force, to notice and diligently inquire into and report to the Chief of Police all violations of the city ordinances or the criminal laws of the state, to make complaint against the person or persons guilty thereof and to attend punctually all trials of offenses in regard to those complaints.
48
Within the City limits and for a distance of one and one-half (1½) miles in all directions outside the City limits, police officers shall perform the duties and exercise the powers of peace officers as defined and prescribed by the laws of the State of North Dakota. (Source: NDCC Section 40-20-05)
5.0106 Duties of Police - Hot Pursuit - Defined
A police officer in “hot pursuit” may continue beyond the one and one-half (1½) mile limit to make an arrest, in obedience to a warrant or without a warrant under the conditions of NDCC Section 29-06-15, whenever obtaining the aid of peace officers having jurisdiction beyond that limit would cause a delay permitting escape. As used in this subjection, “hot pursuit” means the immediate pursuit of a person who is endeavoring to avoid arrest. (Source: NDCC Section 40-20-05)
5.0107 Duties of Police - Service of Process, Etc.
Police officers shall serve and execute any warrant, writ, process, order or notice issued to them by a municipal judge within the City in any civil or criminal action or proceeding in which the City is a party or is interested beneficially. The police, within the limits prescribed in this section, may serve and execute all writs and process issued by justices in civil actions. In addition to the duties set out in this section, the police shall perform such other duties as may be prescribed by the Chief of Police and City Council. (Source: NDCC Section 40-20-05)
ARTICLE 2 - Powers and Duties
5.0201 Money or Property of Arrested Persons
It shall be the duty of the police department, and of each and every member of the police force, to safely keep all moneys or property which may be found on the person, in possession of or claimed by any person arrested for crime and pay or deliver over the same by the order of the municipal judge, and forthwith after taking the same, to report in writing the kind and amount thereof to the municipal judge.
5.0202 Arrested Persons
Any police officer after making any arrest, with or without a warrant, for any violation of City ordinances shall take the person or persons so arrested, without any unreasonable delay, before the municipal judge to be dealt with according to law and the ordinances of the City.
49
5.0203 Stolen, Abandoned, Lost Property
The Chief of Police shall have the custody of all lost, stolen or abandoned property recovered in the City and shall make a report concerning such property as provided by Section 3.0308 of these ordinances.
5.0204 Traffic Administration
The police department shall have such duties concerning enforcement, investigation, record keeping and other matters concerning traffic administration as are more fully set forth in Article 2 of Chapter 9 of these ordinances.
ARTICLE 3 - Miscellaneous
5.0301 False Alarms – Interference - Penalty
No person shall give, or make, or place or cause to be given, made, or placed, any false report, call or communication of any kind to the police or any false police alarm with intent to deceive; or tamper with or set off any police alarm or signal box with like intent; or tamper, meddle or interfere with any such police alarm box or intentionally cut, break, deface or remove any such box, or any of the wires or supports thereof, connected with the police alarm system; or intentionally interfere with or injure any property of any kind belonging to or used by the police department; or hinder or delay any apparatus or equipment or vehicle belonging to the police department. Any person violating this section is guilty of an infraction.
5.0302 Right of Way - Penalty
Any motor vehicle or motorcycle of the police department shall, when going to or returning on business of the department, have the right-of-way upon giving an audible signal by bell, siren, exhaust whistle or flashing light. The driver of any other vehicle shall drive to the nearest right-hand curb or edge of the road, stop and remain until the police vehicle shall have passed. Any person violating this section is guilty of an infraction.
50
CHAPTER SIX
ZONING - LAND USE PLANNING
ARTICLE 1 - Planning and Zoning Commission
6.0101 Planning Commission Created
6.0102 Terms, Compensation, Meetings
6.0103 Ex-Officio Zoning Commission
ARTICLE 2 – Separate Ordinance Volume
6.0201 Separate Ordinances
51
CHAPTER SIX
ZONING - LAND USE PLANNING
ARTICLE 1 - Planning and Zoning Commission
6.0101 Planning Commission Created
There is hereby created a planning commission consisting of five members to be appointed by the City’s chief executive officer, with the approval of the City Council. The chief executive officer, the engineer and city attorney shall be ex-officio members thereof. (Source: NDCC Section 40-48-03)
6.0102 Terms, Compensation, Meetings
The terms of the members, their compensation, and meetings shall be as provided by NDCC Chapter 40-48.
6.0103 Ex-Officio Zoning Commission
The planning commission shall also serve as the zoning commission of the City to hold hearings, make reports and recommendations as to the boundaries of the various original districts and appropriate regulations to be enforced therein, and for changes in or supplements thereto. (Source: NDCC Section 40-47-06)
ARTICLE 2 – Separate Ordinance Volume
6.0201 Separate Ordinances
The City of Center has created a separately bound volume of Planning and Zoning Ordinances which are incorporated into and made a part hereof by reference.
52
CHAPTER SEVEN
WATER AND SEWER
ARTICLE 1 - Utility Established
7.0101 City Water and Sewer Department to be Independent Agency
7.0102 Scope of Utility
7.0103 Service Charges - Use of
7.0104 Policy on Improvements - Extensions
7.0105 Utility Fund - Separate Accounts
7.0106 Provisions for Financing Capital Improvements
7.0107 Agreements with Bond and Warrant Purchasers
ARTICLE 2 - Water Service
7.0201 Water System
7.0202 Water System Operator
7.0203 Application for Water Service and Service Connection Charge
7.0204 Water Service - To Property Not Previously Assessed
7.0205 Separate Connections for each Premise - Exception
7.0206 Service Outside City Limits - Prohibited - Exception
7.0207 Service in Unplatted Areas
7.0208 Water Service - Construction of - Maintenance of by Owner
7.0209 Water Meters - Checked - Fees
7.0210 Unlawful to Use Water Not Metered - Unlawful to Tamper with
Curb Cock
7.0211 Users Consent to Regulations
7.0212 Regulations Governing Service
7.0213 Connection to be Supervised by City Employees
7.0214 Service Pipes Specifications
7.0215 Curb Cock Specifications
7.0216 Check Valves Required When Necessary
7.0217 Rates and Charges
7.0218 Rates and Charges - Liability for
7.0219 Duty to Report to Auditor
7.0220 Excavators
7.0221 Restriction of Use of Water
ARTICLE 3 - Regulation of Sewer Use
7.0301 Purpose
7.0302 Definitions
7.0303 Use of Public Sewers Required
7.0304 When Private Sewage Disposal Permitted
7.0305 Building Sewers and Connections
53
7.0306 Use of Public Sewers
7.0307 Powers and Authority of Inspectors
7.0308 Penalties
ARTICLE 4 - Sewer Surcharge
7.0401 Purpose
7.0402 Determining the Total Annual Cost of Operation and Maintenance
7.0403 Determining Each User’s Wastewater Contribution Percentage
7.0404 Determining a Surcharge System for Users with Above Normal Volume, BOD and TSS
7.0405 Surcharge Rate Schedule for Above Normal Volume of Wastes
7.0406 Surcharge Rate Schedule for Above Normal Strength Wastes
7.0407 Determining Each User’s Wastewater Service Charge
7.0408 Payment of the User’s Wastewater Service Charge and Penalties
7.0409 Review of Each User’s Wastewater Service Charge
ARTICLE 5 - Adoption of State Plumbing Code
7.0501 Adoption
7.0502 Plumbing Code - Enforcement of Provisions
7.0503 Plumbing Code - Changes in Existing Installations
7.0504 Plumbing Code - New Installations
ARTICLE 6 - General Penalty Provision
7.0601 Penalty for Violation of Chapter
54
CHAPTER SEVEN
WATER AND SEWER
ARTICLE 1 - Utility Established
7.0101 City Water and Sewer Department to be Independent Agency
All of the business affairs of the Center City Water and Sewer Department shall be conducted, insofar as is possible, as a completely separate and distinct division of the City. Transfers from the Water and Sewer Department to the General Fund or any other fund of the City shall not be made except upon order of the City Council (Source: NDCC Section 40-33-12) nor shall transfer be made from City funds to the Water and Sewer Department without like order. Where bonds have now been, or may hereafter be issued against any water works improvement or sewage improvement, which constitute a general obligation of the City, the taxes levied for the payment of such bonds and interest shall be levied and expended for such purpose in the manner provided by law, until such time as it may be possible out of the proceeds of the Water and Sewer Department, after setting up a reasonable reserve for depreciation and new construction, to make payment of the bond requirements from the profits of the Water and Sewer Department. It is expressly declared to be the purpose of this ordinance that as soon as the same can be accomplished without undue burden to the water users of this City, the Water and Sewer Department shall be placed upon an entirely independent basis as a separate business enterprise.
7.0102 Scope of Utility
The properties of the City Water and Sewer Department and all future improvements, extensions and enlargements thereof, together with all cash and other assets held in the City’s Water and Sewer Utility Fund and all moneys to be derived thereafter from the services, facilities, products and by-products of said utility, shall be and are hereby appropriated and dedicated to the purpose of insuring the public health, safety and welfare by furnishing and making available water and sewerage service to the City and its inhabitants and industries. Said utility shall at all times be under the management and control of the City Council of the City and shall by it be operated and maintained in such manner as to provide its service with maximum efficiency and at the minimum cost which is compatible with the plan of operation herein described.
7.0103 Service Charges - Use of
The City Water and Sewer Department shall at all times be so operated and maintained, and rates and charges for its services, facilities, products and by-products shall be such, as to make the utility self-supporting and self-perpetuating. Such charges from time to time imposed and collected shall be
55
made and kept adequate to pay as incurred all costs of operation and maintenance of said utility and to establish and maintain reasonable operating reserves; to produce net revenues which shall be sufficient at all times to pay promptly the principal and interest due on all obligations of the City incurred for the improvement, extension and enlargement of said utility, to the extent that such obligations are according to their terms payable from said net revenues, and to establish and maintain adequate reserves for the security of said obligations. Charges may be set to produce surplus net revenues, over and above current principal, interest and reserve requirements, in amounts sufficient to provide reasonable allowances for depreciation and replacement of the utility plus a reasonable return on the City’s capital investment therein which surplus net revenues, when actually on hand, and to the extent that they are not required as a reserve for depreciation and replacement, may from time to time be appropriated by the City Council to pay or contribute to the cost of any other City functions, subject to the limitations now or hereafter prescribed by law.
The foregoing appropriations shall not, however, be deemed or construed to preclude the City from defraying any part or all of the expense of any improvement, enlargement or extension of the water and sewer utility by the levy of special assessments or taxes or the issuance of general obligation bonds, whenever and to the extent that such action is authorized in the manner provided by law and is deemed fair and equitable by the City Council.
7.0104 Policy on Improvements - Extensions
It is hereby declared to be the policy of the City, subject to such modifications as shall be deemed by the City Council to be required by special circumstances in individual cases, and subject to such modifications as may hereafter be made by ordinance amendatory hereof or supplemental hereto, that the cost of capital improvements, enlargements and extensions of said utility shall be paid in the following manner:
1. Where water mains not exceeding six inches or sanitary sewer mains not exceeding eight inches in diameter are installed adjacent to residential properties, and where water mains not exceeding eight inches or sewer mains not exceeding ten inches in diameter are installed adjacent to commercial properties, the total cost thereof shall be assessed against the properties abutting on such improvements, in sums proportionate to and not exceeding the total benefits determined to be derived therefrom by the respective properties. Water and sewer mains of the dimensions above described are referred to herein as “lateral” mains and other mains are referred to as “trunk” mains.
2. Where a trunk main is installed, the City Council upon advice of the city engineer shall estimate the probable cost of construction of a
56
lateral main at the same time and place and such estimated cost shall be assessed against the properties abutting on such main and in the manner above provided.
3. Twenty percent (20%) of the cost of any sanitary sewer in excess of the estimated cost of a lateral sewer at the same time and place shall be assessed against all properties determined by the City Council to require the immediate construction of such main as a trunk sewer, including properties abutting thereon and properties served or capable of being served by lateral sewers connected thereto, in amounts proportionate to and not exceeding the benefits determined to be derived by said respective properties from such trunk sewer.
4. The total cost of storm sewers shall be assessed against properties within the area determined to be benefited thereby, in amounts proportionate to and not exceeding the benefits determined to be derived therefrom by the respective properties.
5. Where a portion of the benefits of any of the foregoing improvements is deemed to accrue primarily to the City at large, a portion not exceeding twenty percent (20%) of the cost thereof, as determined by the City Council, may be paid by the levy of ad valorem taxes upon all property within the City over the same period as the levies of assessments for such improvements, or any portion or all of such cost may be paid out of current funds duly provided in the budget, or from the proceeds of general obligation bonds duly authorized by the electors.
6. Such portion of the cost of any improvement, extension or addition to the utility as is not paid by special assessments and taxes levied and actually collected in respect thereof shall be paid from the net revenues of the utility.
7. Where due to any error or omissions or to any special circumstances a special assessment is not levied against any property benefited by an improvement at the time of the construction thereof in accordance with the program described in this section, the City reserves the right to levy a supplemental special assessment upon such property or to impose and collect a special charge for the connection of such property with the utility system in such amount as shall be required to pay its just share of the assessable cost of such improvement.
7.0105 Utility Fund - Separate Accounts
57
All moneys received by the City in respect of the services, facilities, products and by-products furnished and made available by the City Water and Sewer Department, except collections of special assessments and taxes appropriated to improvement district funds and moneys borrowed for capital improvements, and all money, receipt and returns received from any investments of such earnings, shall be paid into the treasury of the City and kept in a special fund which shall be permanently maintained on the books of the City, separate and distinct from other funds, and designated as the Water and Sewer Utility Fund. In the records of this fund, all receipts and disbursements of money on account of or in connection with the utility shall be entered and reflected; but the moneys from time to time on hand therein shall always constitute public municipal funds and shall be deposited and their safekeeping secured like other City funds. Separate accounts within the Water and Sewer Utility Fund shall be permanently maintained for the purpose of segregating the revenues required to meet the several expenses and obligations of the utility, as provided below, and such revenues shall be administered and accounted for as follows:
1. Operation and Maintenance Account. There shall be credited at least once in each calendar month to the Operation and Maintenance Account of said fund, as a first lien and charge on the gross revenues of the utility such sum as shall be needed, over and above any credit balance then held therein, to pay all claims due which by accepted accounting practices constitute normal, reasonable and current expenses of operation and maintenance of the utility, and to pay such expenses estimated to accrue for a period of approximately one month, and to maintain a reasonable reserve for contingencies. Moneys in said account shall be used only to pay expenses of the foregoing type, and not for repairs or replacements or for capital improvements properly chargeable to replacement and depreciation reserves or surplus funds.
2. Principal and Interest Account. The Principal and Interest Account of the Fund, created by resolution adopted heretofore shall continue to be maintained as provided in that resolution until the payment in full of the improvement warrants issued against said fund.
3. Revenue Bond Account. The net revenues of the utility are herein defined as the aggregate of all sums on hand in the Water and Sewer Utility Fund from time to time in excess of the current requirements defined in (1) and (2) above. The entirety of the said net revenues shall be credited each month to the Revenue Bond Account of the Water and Sewer Fund until there shall have been credited within said account, and thereafter so much of the net revenues as shall be necessary to maintain at all times, a reserve in an amount at least equal to the sum of the principal and interest payments due within
58
each next succeeding twelve-month period upon all revenue bonds of the City heretofore or hereafter issued and made payable from said account. After this reserve has been created, there shall continue to be credited out of the net revenues to the Revenue Bond Account each month, over and above sums required to maintain such reserve, an amount not less than one-twelfth (1/12) of the sum of the principal and interest to become due on all such revenue bonds within the then next succeeding twelve months. Moneys in said account shall be used only for the payment of principal and interest as it becomes due on said revenue bonds, and the reserve shall be used for such purpose only when other moneys in the account are insufficient. All revenue bonds heretofore and hereafter issued and made payable from said account, subject to the limitations upon such issuance contained in Section (6) hereof, shall constitute a first lien and charge on the net revenues of said utility without preference or priority of one bond over any other. However, if at any time the moneys in the Revenue Bond Account should be insufficient to make all payments of principal and interest due on such revenue bonds, and cannot be made sufficient by transfer of moneys from the other accounts described below, the moneys available shall be first used to pay interest then accrued on all bonds payable from said account, and any excess moneys available shall be used to pay matured principal of such bonds in order of their maturity dates, provided that moneys available for payment of bonds maturing on the same date shall be prorated equally among such bonds.
4. Improvement Warrant Account. There shall also be maintained in said fund an Improvement Warrant Account, for the purpose of segregating net revenues required for the payment of any portion of the cost of improvements hereafter instituted, for which such revenues have been pledged in accordance with the provisions of NDCC Chapter 40-22. There shall be transferred from said account as required, to the fund of each improvement district for which such pledge has been made, sums sufficient, together with tax and assessment collections held in such funds, to pay when due the principal and interest on all improvement warrants drawn upon such funds for the financing of such improvements. Moneys sufficient for the requirements of said improvement district funds shall be credited and paid into the Improvement Warrant Account out of the net revenues remaining from time to time after provision for the current requirements of the Revenue Bond Account, and the lien and charge on said net revenues in favor of improvement warrants for the payment of which such pledges have been made shall be subordinate only to the lien and charge on said net revenues in favor of revenue bonds payable from the Revenue Bond Account. In the event that moneys in the Improvement Warrant Account shall be
59
insufficient for the making of all transfers required to be made to the several improvement district funds to which such pledges have been made, and cannot be made sufficient by the transfer of funds from the remaining accounts described below, the available moneys shall be apportioned first to the several improvement district funds in sums sufficient to pay interest then accrued on all warrants drawn on such district funds, and any remainder shall be applied in payment of matured principal of such warrants in order of the maturity dates thereof. As among warrants maturing on the same date, such available moneys shall be applied to the warrants of the several issues in proportion to the matured principal amount thereof for the payment of which taxes and assessments in the respective improvement funds are insufficient.
5. Replacement and Depreciation Account. There shall be maintained a Replacement and Depreciation Account, into which there shall be credited and paid as received, except as otherwise stated below, all net revenues in excess of the current requirements of the other accounts above described. In said account there shall be maintained such balances as the City Council shall from time to time determine to constitute an adequate reserve for depreciation and replacement of the utility, which reserve may be used to redeem prior to maturity obligations payable from the net revenues as and when the same become pre-payable according to their terms, or to replace worn out or obsolete properties of the utility, or to make extensions, enlargements or improvements thereto. Any moneys in said account determined to be surplus to the immediate requirements therefore may be invested or may be transferred to other City funds in the discretion of the Board, in the manner and subject to the limitations set forth in NDCC Section 40-33-12; and any acts amendatory thereof or supplemental thereto.
6. Moneys on Hand. The moneys on hand in any of the accounts of the Water and Sewer Utility Fund shall at all times be available and shall be used to the extent necessary to restore any deficiency in the funds on hand in any of the preceding accounts, in the order listed above, for the fulfillment of the requirements of such preceding accounts as herein defined.
7. Additional Accounts. The City also reserves the right to create additional accounts within the Water and Sewer Utility Fund for the purpose of segregating any surplus net revenues which may be pledged and appropriated to the payment of obligations hereafter issued to finance improvements, enlargements or extensions of said utility, other than the obligations made payable from the Revenue Bond Account and the Improvement Warrant Account, pursuant to
60
the authority for such issuance reserved in Section 7.0107 hereof. Moneys on hand in any such account shall at all times be available for and used to the extent necessary to meet the current requirements of all of the foregoing accounts except the Replacement and Depreciation Account.
7.0106 Provisions for Financing Capital Improvements
In borrowing money for capital improvements, extensions or additions to said utility the following provisions shall at all times be observed:
1. For the purpose of this section, whenever the net revenues of the utility hereinabove appropriated to the Improvement Warrant Account are pledged to pay a portion of the cost of any improvement to be financed by improvement warrants, such warrants and the interest accruing thereon shall be deemed to be payable from said net revenues in the same proportion as that part of the cost payable from said net revenues bears to the principal amount of such warrants. The portion of such costs payable from net revenues shall be deemed equal to the principal amount of the warrants less the principal amount of the taxes and assessments agreed to be levied for the payment thereof.
2. Except as provided in parts (3) and (4) below, no obligations shall be issued and made payable from the Revenue Bond Account or the Improvement Warrant Account at any time unless the net revenues of the utility, as defined in Section 7.0106 (3) hereof, received during the then next preceding fiscal year, shall have been in an aggregate amount at least equal to 125% of the average annual principal and interest payments due on all bonds payable from the Revenue Bond Account which are then outstanding or then to be issued, plus such percentage of the average of the annual principal and interest payments due on each issue of improvement warrants then outstanding or then to be issued as shall be payable from said net revenues, which averages shall be computed on the basis of the principal and interest payments due in the fiscal years of the then remaining term of all such revenue bonds and improvement warrants then outstanding. For the purpose of such computation, whenever rates for water and sewerage service have been changed in the course of any fiscal year, the net revenues for such year shall be deemed to be those which would have been received if such amended rates had been in effect during the entirety of such year, based upon the actual quantities of service furnished to each class of customers and the actual expenses of the utility during such year; provided that in no case shall the net revenues so computed be
61
deemed to exceed 125% of the net revenues actually received during such year.
3. Refunding revenue bonds may be issued for the purpose of prepaying and refunding bonds payable from the Revenue Bond Account when and as they become pre-payable according to their terms, in the manner and to the extent permitted by law, provided that such refunding revenue bonds shall be subject to the requirements set forth in part (2) hereof, as applied to the past net revenues and future principal and interest requirements as of the date of the issuance of such refunding revenue bonds. However, the City shall and does hereby also reserve the right and privilege of issuing refunding revenue bonds, when permitted by law, for the maturities of any bonds payable from the Revenue Bond Account which have matured and for the payment of which the moneys in the Revenue Bond Account are insufficient, and cannot be made sufficient by transfer of moneys from other accounts, and such refunding revenue bonds shall be payable from the Revenue Bond Account on a parity as to interest with all then outstanding bonds payable therefrom, but the maturities of such refunding revenue bonds shall be subsequent to the maturities of all such outstanding bonds. Nothing herein shall be deemed to require the holder of any revenue bond to accept a refunding revenue bond in exchange therefore.
4. The City also reserves the right and privilege of issuing refunding improvement warrants in the manner and to the extent provided in NDCC Chapter 40-27 and acts amendatory thereof and supplemental thereto. The lien and charge of such refunding warrants on the net revenues appropriated to the Improvement Warrant Account shall be the same as that in favor of the improvement warrants refunded thereby; provided that for the purpose of the computations directed to be made in this section, the maturities and the rate or rates of interest payable on such refunding warrants shall be substituted for the maturities and interest rates of the improvement warrants refunded thereby.
5. Nothing herein shall be deemed to affect the obligation of the City, under the laws of the State of North Dakota, to levy ad valorem taxes upon all taxable property within its corporate limits for the purpose of paying a deficiency, if any, in the fund of any improvement district, at the time of the maturity of the last warrant drawn thereon, or at such earlier time as may be hereafter directed by such laws; provided that it shall be the policy of the City that the amounts of any deficiency tax levies so made shall be restored to the general funds of the City out of any surplus net revenues thereafter received, over and above the
62
requirements of the several accounts of the Water and Sewer Utility Fund as stated in Section 7.0105 hereof.
6. Except as hereinbefore authorized, no obligation of any kind shall be issued and made payable from said net revenues unless the lien thereof is expressly made subordinate and junior to the lien and charge on said net revenues in favor of all revenue bonds and improvement warrants payable from the Revenue Bond Account and the Improvement Warrant Account.
7.0107 Agreements with Bond and Warrant Purchasers
The City shall and does hereby covenant and agree with the original purchaser and each holder from time to time of each bond or warrant issued and made payable from the Revenue Bond Account or the Improvement Warrant Account, as follows:
1. It will complete all improvements financed by the issuance of such obligations with due diligence and with the greatest economy consistent with good workmanship and efficient results, and will do so without creating or permitting the creation of any liens or encumbrances on said utility or on the revenues thereof other than the liens and charges of said revenues expressly authorized in this article.
2. As long as any obligations payable from said accounts are outstanding, it will continue to own and operate said utility as a municipal utility, free from all competition as to the services thereby provided and in good and efficient operating condition.
3. It will at all times maintain a schedule of rates, charges and rentals for all services, facilities, commodities and benefits furnished by said utility and will impose and collect the same in amounts at least sufficient to make the minimum payments into the respective accounts of the Water and Sewer Utility Fund as specified in Section 7.0105 hereof, and will revise such schedules in such manner and as often as needed to perform this covenant.
4. Under each such schedule, the City shall be obligated to pay and will pay from its other funds to the Water and Sewer Utility Fund a fair and equitable amount for any and all services, facilities, commodities and benefits furnished to the City or any of its departments by the utility.
5. It will at all times maintain books of account adequate to show all receipts and disbursements of the City respecting the utility, and
63
application of such receipts to the purposes of the several accounts described in Section 7.0105 hereof, which books of account shall be open to inspection by the holder of any obligation payable from the Revenue Bond Account or the Improvement Warrant Account at any reasonable time. The City will furnish a certified transcript therefrom of any information which any such bond or warrant holder may request, upon payment of a reasonable fee therefore.
6. It will cause the annual financial statement of the City required by the provisions of NDCC Section 40-16-05 to include a statement as to the financial condition and the receipts and disbursements of the Water and Sewer Utility Fund and of its several accounts during each fiscal year, and will furnish a copy of such statement to the original purchaser of each issue of bonds or warrants upon request.
7. Upon written demand of the holder of twenty percent (20%) or more of the bonds or warrants of any issue payable from the Revenue Bond Account or Improvement Warrant Account and then outstanding, it will cause an audit of the books of account of the utility to be made by a certified public accountant satisfactory to the holders of such obligations, the cost thereof to be paid as an operating expense of the utility and will furnish a copy of the report of any such audit to such party as shall be designated in such demand.
8. It will at all times keep the properties of said utility insured in reasonable amounts against loss or damage by fire, tornado and other risks for which similar properties are customarily insured by prudent owners, and will carry adequate public liability insurance, insuring against any claim of personal injury of property damage which is or may become a charge against the revenues of the utility. The City will also cause all persons handling funds of the utility to be bonded in suitable amounts for the protection of the City and the holders of obligations of the utility, and the expense of all such insurance and bonds shall be accounted for as an operating cost of the utility. The City will use the proceeds of any such insurance and bonds to restore the loss or damage compensated thereby.
9. The City and its City Council and each and all of its officers will punctually perform all duties with reference to said utility and the revenues thereof and the obligations issued hereunder which are imposed by the ordinances and resolutions of the City in force on the date upon which any such obligations are issued. All provisions of the Constitution and laws and of such ordinances and resolutions which provide security for the holders of bonds issued hereunder are acknowledged to be a part of the City’s contract with the holders of such obligations; provided that nothing herein shall be deemed to
64
preclude the City from modifying the policies set forth in Section 7.0104 hereof with reference to any improvements constructed and financed after the effective date of such modification.
10. The holders of twenty percent (20%) or more in principal amount of each issue of bonds or warrants payable from the Revenue Bond Account or the Improvement Warrant Account and at the time outstanding shall be privileged, and are hereby empowered, to institute and maintain, on behalf of the holders of all outstanding obligations of the same issue, any suit or proceeding at law or in equity for the protection and enforcement of any covenant, agreement or stipulation herein provided to be performed or observed by the City or its City Council or any of its officers, whether or not any such obligations are then in default as to principal and interest. Each and all of the rights and remedies provided by NDCC Sections 40-35-15 and 40-35-19 are hereby acknowledged to be available to the holders of such obligations.
ARTICLE 2 - Water Service
7.0201 Water System
All land, buildings, machinery, equipment, tools and apparatus, water mains, hydrants, service connections and all other property used for the purpose of furnishing a water supply to this City, and the inhabitants thereof, now owned or to be owned by this City, whether acquired by the issue of general obligation bonds, special assessment warrants or other obligations of this City, shall constitute and be known as the waterworks system.
7.0202 Water System Operator
A water system operator shall be appointed by the City Council. If the superintendent is a part-time employee and is also a City employee in some other capacity, only those services respecting the water system shall be an operating charge of the system. It shall be the duty of the water superintendent to exercise control and management of the operation of the waterworks system. He shall have power and authority to employ, subject to the approval of the City Council, all such engineers, filter plant operators, meter readers, laborers and other employees, as may be necessary to the operation of the waterworks system. All such employees shall be subject to his orders and directions, and he shall be responsible for their acts. He shall have power and authority to purchase such materials, supplies and repairs for the waterworks system, with the approval of the City Council, as shall be reasonably necessary for the operation of such system. He shall keep such books and records of matters pertaining to the operation of the system, as are necessary to show the operation and condition thereof. He shall at all times be subject to the supervision and
65
direction of the City Council. He shall perform such other duties and have such other powers and authority as are hereinafter provided for.
7.0203 Application for Water Service and Service Connection Charge
Any party desiring water and sewer service from said utility for premises not heretofore connected with the system, and not subject to the provisions of Section 7.0205 set forth below, shall apply for a connection on a form provided by the City. Such application shall state an exact description of the premises to be served, and the uses, both general and special, to which the water is to be put, the nature of sewage to be discharged, and the estimated amount of water to be used for a quarter-annual period. Such application shall be filed with the City Auditor, and the applicant shall thereupon pay to the City Auditor, as a connection charge, in an amount determined from time to time by the City Council.
7.0204 Water Service - To Property Not Previously Assessed
No permit shall be issued for the making of any connection between any water or sewer line on any property which has not previously been benefited by existing water and/or sewer lines or whenever the owners of such property have not been assessed for such water and sewer lines, unless and until such person shall have paid or made a written agreement with the City to pay in monthly installments an amount of money as may be therefore determined by the City Council. The amount of the payment shall be based on the area served and benefit resulting to the property involved. Within 30 days of the receipt of such application, the City Council shall determine the amount of money required to be paid before such connection shall be made and shall advise the applicant property owner of such determination. All such money paid and received pursuant to the provisions of this section shall be placed in the water and sewer utility fund and shall be expended in accordance with the purposes of such fund.
7.0205 Separate Connections for each Premise - Exception
Unless special permission is granted by the water superintendent, each premise shall have a separate and distinct water service connection and sewer service connection, and where permission is granted for branch service systems, each unit on the branch shall pay the fees as set from time to time by the City Council.
7.0206 Service Outside City Limits - Prohibited - Exception
No application for water and/or sewer service outside the city limits of the City shall be approved and no person outside the corporate limits of the City shall hook up to or make connection with the city water and/or sewer system whether the same now is outside or inside the incorporated limits of the City. Water
66
service outside the corporate limits of the City may be permitted pursuant to contractual agreement of the City Council arising in limited and extraordinary circumstances but shall be permitted only upon a resolution unanimously adopted by the City Council. (Source: NDCC Section 40-33-13, 14)
7.0207 Service in Unplatted Areas
No application for water and/or sewer service shall be approved and no person shall hook up to or make connection with the City water and sewer system unless the area to be served by said water and/or sewer connection has been duly platted and the plat approved by the City Council and recorded in the County Register of Deeds Office.
7.0208 Water Service - Construction of - Maintenance of by Owner
The cost of original installation of all plumbing between the property line and any service devices maintained by the consumer and all extensions made to such plumbing, as well as all repairs, shall be borne entirely by the consumer, although such plumbing and services as well as the meters shall at all reasonable times be subject to inspection by duly authorized representatives of the City. Any repairs found to be necessary by such representatives shall be made promptly, or the City will discontinue service.
All services shall be constructed by licensed plumbers at the owner’s expense, and each service shall be maintained by the owner. Services heretofore acquired by the issuance of special assessment warrants and assessed against the property, or which may be acquired in the future in like manner, shall likewise be maintained by the owner. Services means the service line running from the point of connection with the City property to owner’s premises.
7.0209 Water Meters - Checked - Fees
Every consumer of water shall provide a suitable place where a water meter can be installed and the municipality shall install and maintain the same, and if at any time the consumer desires to have the meter tested for accuracy, the same shall be done by the City and a fee of $10.00 charged therefore to the consumer if the meter registers 98% or more accurate. If the meter registers less than 98% accurate, it shall be replaced and the fee refunded.
7.0210 Unlawful to Use Water Not Metered - Unlawful to Tamper with Curb Cock
67
It shall be unlawful for any person to use water from any premises without the consent of the owner or to use water from the City water system except when drawn through a meter maintained by the City. No person except an authorized representative of the City shall turn on or off or tamper with any curb cock.
7.0211 Users Consent to Regulations
Every person applying for water and sewer service from the municipal system, and every owner of property for which such application is made, shall be deemed by such application to consent to all the rules, regulations and rates contained in the resolution or ordinances of the City and to any modification thereof and to all new rules, regulations or rates duly adopted.
7.0212 Regulations Governing Service
The following rules and regulations shall be considered a part of the contract with every person who takes water and/or sewer service supplied by the City through the city waterworks system and every such person who takes such service shall be considered as having expressed agreement to be bound thereby.
1. Shutting Off Water - Who Authorized. No person except an authorized employee of the water department shall shut off or turn on the water at the curb cock to any premises without first obtaining permission from the water department.
2. City Reserves Right to Shut Off Water - Notice. In the case of making repairs or constructing new work, the City reserves the right to shut off the water at once and keep the same shut off as long as may be necessary to accomplish such purposes. Service may also be discontinued for nonpayment of bills or for disregard of rules and regulations affecting the service.
3. Non-liability of City for Deficient Supply or Quality of Water. It is expressly provided that the City shall in no event be or become liable to any consumer of water for a deficiency in the supply of water or the quality thereof, whether by shutting off the same to make repairs or to construct new work or for any other cause whatsoever.
4. Shutting Off Water - Charge for. The water department shall make a charge of $1.00 each for shutting off or turning on services performed at the request of the consumer.
5. Entrance and Access to Premises by Waterworks Employees. Authorized employees of the water and sewer department shall have free access to any premises supplied with water, at proper times, to
68
inspect and ascertain the condition of the meters and fixtures, or for reading meters, and no owner or occupant shall refuse such employees such access. The water department shall have the right to enter any premises and remove the meter for the purpose of examination and test after first notifying the owner or occupant, and to shut off the water to premises where free access is prevented.
6. Fire Hydrants - Who May Open. No person except City employees authorized in the performance of their official duties shall open or cause to be opened any fire hydrant without the written permission of the water superintendent.
7.0213 Connection to be Supervised by City Employees
In installing water and sewer service, all taps shall be driven, street excavations made, corporation cocks inserted, pipes installed from the main and the curb cock installed in an iron box to which the service is to be connected by the individual, his agent or employee under the supervision, direction and control of the water and sewer department. Ten feet spacing shall be allowed between all water and sewer lines in new connections to service. Failure to comply with this section shall be considered a disregard of the rules of the department and service to the affected property can be withheld or discontinued as the case may be.
7.0214 Service Pipes Specifications
All service pipes connected with the water and sewer utility shall be laid a minimum of seven feet below the established grades or as low as the street mains. All water and sewer service pipes shall be of a material approved by the water superintendent.
7.0215 Curb Cock Specifications
There shall be a curb cock in every service line attached to the water mains, the same to be placed as near as possible to the property line if on a street, or within one foot of the alley line if the main is located in the alley. Curb cocks shall be supplied with strong and suitable “T” handles and shall be enclosed in a substantial iron case covered with a tight fitting iron lid with the letter “W” cast upon it. There shall be one or more stops and waste cocks attached to every supply pipe at some point between the curb cock and the meter so that the water can be shut off and the house plumbing entirely drained. There shall be another such stop and waste cock in the pipe on the house side of the meter.
7.0216 Check Valves Required When Necessary
69
Check valves are hereby required on all water connections to steam boilers or any other connection deemed by the water superintendent to require one. Safety and release valves shall be placed on all boilers or other steam apparatus connected with the water system where the steam pressure may be raised in excess of fifty pounds per square inch.
7.0217 Rates and Charges
Water and sewer rates shall be fixed from time to time by resolution of the City Council and the City reserves the right to change the rates from time to time as it deems best. The resolution fixing water and sewer rates and charges shall be kept on file in the office of the City Auditor and shall be open for public inspection.
7.0218 Rates and Charges - Liability for
The owner or owners of all real property in the City furnished water or sewer service or service line repairs shall be responsible for the payment of any and all such charges regardless of who the occupant or tenant may be. Owners of premises where water or sewer service is supplied shall notify the water or sewer department or the City Auditor in case any tenant moves from said premises, prior to such moving. On request of the owner or owners, the City Auditor will bill or cause to be billed the occupant or tenant for such charges, but if such charges are not paid when due by the occupant or tenant, the owner or owners shall be responsible for such charges and they shall be assessed to the property served. It shall be the duty of the City Auditor to certify to the County Auditor such unpaid water or service charges that are unpaid in the same manner and at the same time as other assessments are certified, and they shall be assessed and collected in the same manner.
7.0219 Duty to Report to Auditor
Every owner or operator of a multiple dwelling unit shall file with the City Auditor a report indicating the total number of units under his control. Every owner or operator of a mobile home park shall file with the City Auditor a report indicating the total number of units in the park and shall further notify the City Auditor of any changes in the number of units in the park if the number increases or decreases.
7.0220 Excavators
No person, firm or corporation shall excavate in or on any street, alley or other public place for the purpose of installing any water and/or sewer connection until they have complied with the provisions of the North Dakota “one call” statutes.
70
7.0221 Restriction of Use of Water
The City Council may from time to time declare that water may not be used for specific purposes or may only be used in certain parts of the City on certain days for certain purposes. The City shall have the right to prohibit the watering of lawns and gardens, the washing of cars or such other uses of the water as may be necessary to preserve for the general public an adequate supply of water for consumption and use by the general public.
ARTICLE 3 - Regulation of Sewer Use
7.0301 Purpose
It is the purpose of this article to provide ordinances regulating the use of public and private sewers and drains, private sewage disposal, the installation and connection of building sewers and the discharge of waters and wastes into the public sewer system and to provide penalties for violations thereof.
7.0302 Definitions
Unless the context specifically indicates otherwise, the meaning of the terms used in the article shall be as follows:
1. “BOD” (denoting Biochemical Oxygen Demand) shall mean the quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure in five (5) days at 20 degrees Centigrade, expressed in milligrams per liter.
2. “Building Drain” shall mean that part of the lowest horizontal piping of a drainage system which receives the discharge from soil, waste and other drainage pipes inside the walls of the building and conveys it to the building sewer, beginning five (5) feet (1.5 meters) outside the inner face of the building wall.
3. “Building Sewer” shall mean the extension from the building drain to the public sewer or other place of disposal, also called house connection.
4. “Combined Sewer” shall mean a sewer intended to receive both wastewater and storm or surface water.
5. “Easement” shall mean an acquired legal right for the specific use of land owned by others.
6. “Floatable Oil” is oil, fat or grease in a physical state such that it will separate by gravity from wastewater by treatment in an approved pretreatment facility. A wastewater shall be considered free of
71
floatable fat if it is properly pretreated and the wastewater does not interfere with the collection system.
7. “Garbage” shall mean the animal and vegetable waste resulting from the handling, preparation, cooking and serving of foods.
8. “Industrial Wastes” shall mean the wastewater from industrial processes, trade or business as distinct from domestic or sanitary wastes.
9. “Natural Outlet” shall mean any outlet, including storm sewers and combined sewer overflows, into a watercourse pond, ditch, lake or other body of surface or groundwater.
10. “Person” shall mean any individual, firm, company, association, society, corporation or group.
11. “pH” shall mean the logarithm of the reciprocal of the hydrogen-ion concentration. The concentration is the weight of hydrogen ions, in grams, per liter of solution. Neutral water, for example, has pH value of 7 and a hydrogen-ion concentration of 10-7.
12. “Properly Shredded Garbage” shall mean the wastes from the preparation, cooking and dispensing of food that have been shredded to such a degree that all particles will be carried freely under the flow conditions normally prevailing in public sewers, with no particle greater than ½ inch (1.27 centimeters) in any dimension.
13. “Public Sewer” shall mean a common sewer controlled by a governmental agency or public utility.
14. “Sanitary Sewer” shall mean a sewer that carries liquid and water-carried wastes from residences, commercial buildings, industrial plants and institutions together with minor quantities of ground, storm and surface waters that are not admitted intentionally.
15. “Sewer” shall mean a pipe or conduit that carries wastewater or drainage water.
16. “Slug” shall mean any discharge of water or wastewater which in concentration of any given constituent or in quantity of flow exceeds for any period of duration longer than fifteen (15) minutes more than five (5) times the average twenty-four (24) hour concentration or flows during normal operation and shall adversely affect the collection system and/or performance of the wastewater treatment works.
72
17. “Storm Drain” (sometimes termed “storm sewer”) shall mean a drain or sewer for conveying water, groundwater, subsurface water or unpolluted water from any source.
18. “Superintendent” shall mean the superintendent of wastewater facilities, and/or of wastewater treatment works, and/or of water pollution control of the City or an authorized deputy, agent or representative.
19. “Suspended Solids” shall mean total suspended matter that either floats on the surface of, or is in suspension in water, wastewater or other liquids, and that is removable by laboratory filtering as prescribed in “Standard Methods for the Examination of Water and Wastewater” and referred to as nonfilterable residue.
20. “Unpolluted Water” is water of quality equal to or better than the effluent criteria in effect or water that would not cause violation of receiving water quality standards and would not be benefited by discharge to the sanitary sewers and wastewater treatment facilities provided.
21. “Wastewater” (or “sewage”) shall mean the spent water of a community. From the standpoint of source, it may be a combination of the liquid and water-carried wastes from residences, commercial buildings, industrial plants and institutions, together with any groundwater, surface water and storm water that may be present.
22. “Wastewater Facilities” shall mean the structures, equipment and processes required to collect, carry away and treat domestic and industrial wastes and dispose of the effluent.
23. “Wastewater Treatment Works” shall mean an arrangement of devices and structures for treating wastewater, industrial wastes and sludge. Sometimes used as synonymous with “waste treatment plant” or “wastewater treatment plant” or “water pollution control plant.”
24. “Watercourse” shall mean a natural or artificial channel for the passage of water either continuously or intermittently.
7.0303 Use of Public Sewers Required
73
1. It shall be unlawful for any person to place, deposit or permit to be deposited in any unsanitary manner on public or private property within the City or in any area under the jurisdiction of the City any human or animal excrement, garbage or other objectionable waste.
2. It shall be unlawful to discharge to any natural outlet within the City or in any area under the jurisdiction of the City any sewage or other polluted waters, except where suitable treatment has been provided in accordance with subsequent provisions of this ordinance.
3. Except as hereinafter provided, it shall be unlawful to construct or maintain any privy, privy vault, septic tank, cesspool or other facility intended or used for the disposal of sewage.
4. The owner of all houses, buildings or properties used for human occupancy, employment, recreation or other purposes, situated within the City, and abutting on any street, alley or right-of-way in which there is now located or may in the future be located a public sanitary sewer, is hereby required at the owner’s expense to install suitable toilet facilities therein, and to connect such facilities directly with the proper public sewer in accordance with the provisions of this ordinance, within thirty (30) days after date of official notice to do so, provided that said public sewer is within 200 feet (61 meters) according to the North Dakota plumbing code of the property line.
7.0304 When Private Sewage Disposal Permitted
1. Where a public sanitary or combined sewer is not available under the provisions of Section 7.0303 (4), the building sewer shall be connected to a private wastewater disposal system complying with the provisions of this article.
2. Before commencement of construction of a private wastewater disposal system, the owner shall first obtain a written permit signed by the superintendent. The application for such permit shall be made on a form furnished by the City, which the applicant shall supplement by any plans, specifications and other information as are deemed necessary by the superintendent. A permit and inspection fee of $20.00 shall be paid to the City at the time the application is filed.
3. A permit for a private wastewater disposal system shall not become effective until the installation is completed to the satisfaction of the superintendent. The superintendent shall be allowed to inspect the work at any stage of construction, and in any event, the applicant for the permit shall notify the superintendent when the work is ready for final inspection, and before any underground portions are covered.
74
The inspection shall be made within 72 hours of the receipt of notice by the superintendent.
4. The type, capacities, location and layout of a private wastewater disposal system shall comply with all recommendations and/or regulations of the North Dakota State Department of Health. No septic tank or cesspool shall be permitted to discharge to any natural outlet or to the ground surface.
5. At such time as a public sewer becomes available to a property served by a private wastewater disposal system, as provided in Section 7.0303 (4), a direct connection shall be made to the public sewer within sixty (60) days in compliance with this ordinance, and any septic tanks, cesspools and similar private wastewater disposal facilities shall be cleaned of sludge and filled with suitable material.
6. The owner shall operate and maintain the private wastewater disposal facilities in a sanitary manner at all times, at no expense to the City. All sludge or solids, to be disposed of from a septic tank, cesspool or other individual method of disposal shall be disposed of by a licensed septic tank pumper in accordance with NDCC Section 23-19-01.
7. No statement contained in this article shall be construed to interfere with any additional requirements that may be imposed by the local health officer.
7.0305 Building Sewers and Connections
1. No unauthorized person shall uncover, make any connection with or opening into, use, alter or disturb any public sewer or appurtenance thereof without first obtaining a written permit from the superintendent.
2. There shall be two (2) classes of building sewer permits: (a) for residential and commercial service, and (b) for service to establishments producing industrial wastes. The owner or his agent, shall make application on a special form furnished by the City. The permit application shall be supplemented by any plans, specifications or other information considered pertinent in the judgment of the superintendent. A permit and inspection fee of $10.00 for a residential or commercial building sewer permit and $20.00 for an industrial building sewer permit shall be paid to the City at the time the application is filed.
75
3. All costs and expense incidental to the installation and connection of the building sewer shall be borne by the owner. The owner shall indemnify the City from any loss or damage that may directly or indirectly be occasioned by the installation of the building sewer.
4. A separate and independent building sewer shall be provided for every building; except where one building stands at the rear of another on an interior lot and no private sewer is available or can be constructed to the rear building through an adjoining alley, court, yard or driveway, the building sewer from the front building may be extended to the rear building and the whole considered as one building sewer. The City does not and will not assume any obligation or responsibility for damage caused by or resulting from any such single connection.
5. Old building sewers may be used in connection with new buildings only when they are found, on examination and test by the superintendent, to meet all requirements of this ordinance.
6. The size, slope alignment, materials of construction of all sanitary sewers including building sewers, and the methods to be used in excavating, placing of the pipe, jointing, testing and backfilling the trench, shall all conform to the requirements of the building and plumbing code or other applicable rules and regulations of the City. In the absence of suitable code provisions, specifications of the state building and plumbing codes shall apply.
7. Whenever possible, the building sewer shall be brought to the building at an elevation below the basement floor. In all buildings in which any building drain is too low to permit gravity flow to the public sewer, sanitary sewage carried by such building drain shall be lifted by an approved means and discharged to the building sewer.
8. No person shall make connection of roof downspouts, foundation drains, areaway drains or other sources of surface runoff or groundwater to a building sewer, or building drain which in turn is connected directly or indirectly to a public sanitary sewer unless such connection is approved by the superintendent and the North Dakota State Department of Health.
9. The applicant for the building sewer permit shall notify the superintendent when the building sewer is ready for inspection and connection to the public sewer. The connection and testing shall be made under the supervision of the superintendent or his representative.
76
10. All excavations for building sewer installation shall be adequately guarded with barricades and lights so as to protect the public from hazard. Streets, sidewalks, parkways and other public property disturbed in the course of the work shall be restored in a manner satisfactory to the City.
7.0306 Use of Public Sewers
1. No person shall discharge or cause to be discharged any unpolluted waters such as storm water, surface water, groundwater, roof runoff, subsurface drainage or cooling water to any building drain or sewer which in turn is connected directly or indirectly to the sanitary sewer unless such connection is approved by the superintendent and the North Dakota State Department of Health.
2. No person shall discharge or cause to be discharged any of the following described water or wastes to any public sewers:
a. Any gasoline, benzene, naphtha, fuel oil or other flammable or explosive liquid, solid or gas.
b. Any waters containing toxic or poisonous solids, liquids or gases in sufficient quantity, either singly or by interaction with other wastes, to injure or interfere with any sewage treatment process, constitute a hazard to humans or animals, create a public nuisance, or create any hazard in the receiving waters of the wastewater treatment plant.
c. Solid or viscous substances in quantities or of such size capable of causing obstruction to the flow in sewers or other interference with the proper operation of the wastewater facilities such as, but not limited to ashes, cinders, sand, mud, straw, shavings, metal, glass, rags, feathers, tar, plastics, wood, unground garbage, whole blood, paunch manure, hair and fleshings, entrails and paper dishes, cups, milk containers, etc. either whole or ground by garbage grinders.
3. If any waters or wastes are discharged, or are proposed to be discharged to the public sewers, which waters contain the substances or possess the characteristics enumerated in 7.0306 (2), and which in the judgment of the superintendent, may have a deleterious effect upon the wastewater facilities, processes, equipment, or receiving waters, or which otherwise create a hazard to life or constitute a public nuisance, the superintendent may:
a. Reject the wastes;
77
b. Require pretreatment to an acceptable condition for discharge to the public sewers;
c. Require control over the quantities and rates of discharge; and/or
d. Require payment to cover the added costs of handling and treating the wastes not covered by sewer charges.
If the superintendent permits the pretreatment or equalization of waste flows, the design and installation of the plants and equipment shall be subject to the review and approval of the superintendent and the North Dakota State Department of Health.
4. When required by the superintendent, the owner of any property serviced by a building sewer carrying industrial wastes shall install a suitable structure together with such necessary meters and other appurtenances in the building sewer to facilitate observation, sampling and measurement of the wastes. Such structures, when required, shall be accessibly and safely located and shall be constructed in accordance with plans approved by the superintendent. The structure shall be installed by the owner at his expense and shall be maintained by the owner so as to be safe and accessible at all times.
5. The superintendent may require a use of sewer services to provide information needed to determine compliance with this ordinance. These requirements may include:
a. Wastewaters discharge peak rate and volume over a specified time period.
b. Chemical analyses of wastewaters.
c. A plot plan of sewers of the user’s property showing sewer and pretreatment facility location.
d. Details of systems to prevent and control the losses of materials through spills to the City sewer.
6. All measurements, tests and analyses of the characteristics of waters and wastes to which reference is made in this ordinance shall be determined in accordance with the latest edition of “Standard Methods for the Examination of Water and Wastewater,” published by the American Public Health Association. Sampling methods,
78
location, times, durations and frequencies are to be determined on an individual basis by the superintendent.
7. No statement contained in this section shall be construed as preventing any special agreement or arrangement between the City and any industrial concern whereby an industrial waste of unusual strength or character may be accepted by the City for treatment.
7.0307 Powers and Authority of Inspectors
The superintendent and other duly authorized employees of the City bearing proper credentials and identification shall be permitted to enter all properties for the purposes of inspection, observation, measurement, sampling and testing pertinent to discharge to the community system in accordance with the provisions of this ordinance.
7.0308 Penalties
1. Any person found to be violating any provision of this ordinance except Section 7.0307 shall be served by the City with written notice stating the nature of the violation and providing a reasonable time limit for the satisfactory correction thereof. The offender shall, within the period of time stated in such notice, permanently cease all violations.
2. Any person who shall continue any violation beyond the time limit provided for in Section 7.0308(1), shall be guilty of an infraction, and on conviction thereof shall be fined in the amount not exceeding five hundred dollars ($500.00) for each violation. Each day in which any such violation shall continue shall be deemed a separate offense.
3. Any person violating any of the provisions of this ordinance shall become liable to the City for any expense, loss or damage occasioned the City by reason of such violation.
ARTICLE 4 - Sewer Surcharge
7.0401 Purpose
The purpose of this article shall be to generate sufficient revenue to pay all costs for the operation and maintenance of the complete wastewater system. The costs shall be distributed to all users of the wastewater system in proportion to each user’s contribution to the total loading of the treatment works. Factors such as strength (BOD and TSS), volume and delivery flow rate characteristics shall be considered and included as the basis for the user’s contribution to
79
ensure a proportional distribution of operation and maintenance costs to each user.
7.0402 Determining the Total Annual Cost of Operation and Maintenance
The City or the city engineer shall determine the total annual costs of operation and maintenance of the wastewater system which are necessary to maintain the capacity and performance, during the service life of the treatment works, for which such works are designed and constructed. The total annual cost of operation and maintenance shall include, but need not be limited to, labor, repairs, equipment replacement, maintenance, necessary modifications, power, sampling, laboratory tests and a reasonable contingency fund.
7.0403 Determining Each User’s Wastewater Contribution Percentage
The City or the city engineer may determine each user’s average daily volume of wastewater, which has been discharged to the wastewater system, which shall then be divided by the average daily volume of all wastewater discharged to the wastewater system, to determine such user’s volume contribution percentage. The amount used as the total average daily volume of wastewater shall exclude infiltration and inflow. The City or the city engineer shall determine each user’s average daily poundage of 5-day 20-degree Centigrade biochemical oxygen demand which has been discharged to the wastewater system which shall then be divided by the average daily poundage of all 5-day 20-degree Centigrade biochemical oxygen demand discharged to the wastewater system to determine each user’s Biochemical oxygen demand contribution percentage.
The City or the superintendent or city engineer may determine each user’s average daily poundage of suspended solids that has been discharged to the wastewater system which shall then be divided by the average daily poundage of all suspended solids discharged to the wastewater system, to determine such user’s suspended solids contribution percentage. Each user’s volume contribution percentage, biochemical oxygen demand contribution percentage and suspended solids contribution percentage shall be multiplied by the annual operation and maintenance costs for the total volume, the total 5-day 20-degree Centigrade biochemical oxygen demand and the total suspended solids for the wastewater system, respectively.
7.0404 Determining a Surcharge System for Users with Above Normal Volume, BOD and TSS
80
The City or the city engineer may determine the average total suspended solids (TSS) and biochemical oxygen demand (BOD) daily loadings for the average residential user and residential user class. The City will assess a surcharge rate for all non-residential users discharging wastes with volume, BOD and TSS strengths greater than the average residential user. Such users will be assessed a surcharge sufficient to cover the costs of treating such users above-normal strength wastes and/or volume. Normal strength wastes are considered to be 200 mg/1 BOD and 250 mg/1TSS.
7.0405 Surcharge Rate Schedule for Above Normal Volume of Wastes
Residential users are considered to be one class of user and are hereby levied a monthly charge as determine by the City Council from time to time. Non-residential users with flows no greater than the average residential user’s flow of 4,000 gallons per month and with BOD and TSS no greater than the average residential user’s strength will be levied the same monthly charge as the average residential user.
Non-residential users with volumes greater than the average residential user will pay an additional charge of 60 cents per 1,000 gallons per month for all flows greater than the average residential user’s flow of 4,000 gallons per month.
7.0406 Surcharge Rate Schedule for Above Normal Strength Wastes
Any non-residential user with BOD and TSS greater than the average residential user’s strength will pay a surcharge in accordance with the rates determined by the City or its engineer.
The City or the city engineer may determine the total suspended solids (TSS) and 5-day biochemical oxygen demand (BOD5) daily loadings for the average residential user and/or user class or in lieu of such determination can consider the average residential strength wastes to be 200 mg/1 BOD5 and 250 mg/1 TSS. The City will assess a surcharge rate for all non-residential users discharging wastes with BOD and TSS strengths greater than the average residential user. The surcharge will be sufficient to cover the costs of treating such users above normal strength wastes. Such users will pay an additional user charge in an amount as determined from time to time per 1,000 gallons for each 25 mg/1 or fraction thereof over 200 mg/1 of BOD5 and per 1,000 gallons for each 25 mg/1 or fraction thereof over 250 mg/1 TSS.
7.0407 Determining Each User’s Wastewater Service Charge
81
Each non-residential user’s wastewater cost contributions as determined in Sections 7.0405 and 7.0406 may be added together to determine such user’s annual wastewater service charge. Residential users may be considered to be one class of user and an equitable service charge may be determined for each user based on an estimate of the total wastewater contribution of this class of user. The City Council may classify industrial, commercial and other non-residential establishments as a residential user, provided that the wastes from these establishments are equivalent to the wastes from the average residential user with respect to volume, suspended solids and 5-day 20-degree Centigrade biochemical oxygen demand. Each user’s wastewater treatment cost contribution will be assessed in accordance with the attached rate schedule.
7.0408 Payment of the User’s Wastewater Service Charge and Penalties
The City may submit an annual statement to the user for the user’s annual wastewater service charge or one-twelfth of the user’s annual wastewater service charge may be included with the monthly water and/or wastewater utility billing. The City shall add a penalty of 10 percent per month if the payment is not received by the City within thirty days. Should any user fail to pay the user wastewater service charge and penalty within three months of the due date, the City may stop the wastewater service to the property.
7.0409 Review of Each User’s Wastewater Service Charge
The City shall review the total annual cost of operation and maintenance as well as each user’s wastewater contribution percentage on an annual basis and will revise the system as necessary to assure equity of the service charge system established herein and to assure that sufficient funds are obtained to adequately operate and maintain the wastewater system.
ARTICLE 5 - Adoption of State Plumbing Code
7.0501 Adoption
To promote the protect the public health there is hereby adopted the State Plumbing Code, which has been adopted by the State Plumbing Board and approved by the State Health Department, consisting of rules and regulations governing plumbing work, and the whole thereof, of which not less than on (1) copy is on file in the office of the City Auditor, and the same is hereby adopted as fully as if set out at length herein and all plumbing work in the City shall comply with said code.
7.0502 Plumbing Code - Enforcement of Provisions
82
All plumbing work and all private sanitary drains and cesspools now existing, or hereafter to be installed, altered or repaired in any building or in or under any private property within the corporate limits shall be under the supervision and regulation of the superintendent of the water and sewer department, whose duty it shall be to enforce all the provisions of this code relating thereto and from time to time to make such rules and regulations as may be appropriate for the execution of the same.
7.0503 Plumbing Code - Changes in Existing Installations
The superintendent of the water and sewer department is hereby given authority to order the repair, alteration or removal of any sanitary sewer connection or plumbing, any connection to storm water sewer, or any private sanitary drain, cesspool or privy, which in his judgment is so installed or is in such condition as to be unsanitary, or to constitute a public nuisance or menace to health. In case of such repair, alteration or removal, if the plumbing code is not observed and connections not properly executed by the owner or owners thereof, in accordance with his directions, he may cause the same to be discontinued from any source of water supply. It shall thereafter be unlawful for any person in any manner to use any such installation, or to supply water thereto, until the same shall have been put in a safe and sanitary condition according to his direction.
7.0504 Plumbing Code - New Installations
All plumbing work and all excavations in the public streets or alleys, the cutting and replacing of pavement, laying of water and sewer connections and connections to storm water sewers and all construction of private sanitary drains and cesspools within the corporate limits shall be undertaken and executed only by a master plumber or other persons as have obtained a general license for such work together with a permit for each separate job, provided that the tapping of water mains and the placing of corporate cocks therein shall be done only under the direction of city employees.
ARTICLE 6 - General Penalty Provision
7.0601 Penalty for Violation of Chapter
Any person, firm or corporation violating any of the provisions of this chapter not providing for a penalty shall be guilty of an infraction and, upon conviction thereof by a court of competent jurisdiction, shall be subject to a fine of not exceeding five hundred dollars ($500.00) for each violation.
83
CHAPTER EIGHT
BUSINESS REGULATIONS AND LICENSES
ARTICLE 1 - General Provisions
8.0101 Licenses
8.0102 Licenses - Application
8.0103 Licenses - Granting
8.0104 Licenses - Term
8.0105 Licenses - Not Transferable
8.0106 Licenses - Revocation
8.0107 Licenses - Posting of
8.0108 Licenses - Short Term
8.0109 Licenses - Enforcement
ARTICLE 2 - Transient Merchants
8.0201 Definitions
8.0202 License Required
8.0203 License Fee
8.0204 License - Application for
8.0205 Bond
8.0206 Service of Process
8.0207 Exhibiting License
8.0208 Transfer
8.0209 Revocation
8.0210 Expiration of License
ARTICLE 3 - Hawkers and Peddlers
8.0301 Definitions
8.0302 License Required
8.0303 Exceptions
8.0304 License - Application for
8.0305 Fees
8.0306 Exhibition of License
8.0307 Transfer
8.0308 Use of Streets
8.0309 Revocation
ARTICLE 4 - Runners, Solicitors and Canvassers
8.0401 Definitions
8.0402 Exceptions
8.0403 License Required
84
8.0404 License - Application for
8.0405 Fees
8.0406 Exhibition of License
8.0407 Transfer
8.0408 Use of Streets
8.0409 Revocation
ARTICLE 5 - Alcoholic Beverages
8.0501 Definitions
8.0502 Exceptions
8.0503 License Required
8.0504 Licenses - Classes of - Fees
8.0505 Licenses - Term of
8.0506 License - Qualifications for
8.0507 Application for Liquor License
8.0508 License - Applicant Fitness
8.0509 License - Location of
8.0510 License - Granting
8.0511 License - Limit to One Applicant
8.0512 License - Posting of
8.0513 License - Transfer of
8.0514 License Fees - Disposition of
8.0515 Hours and Time of Sale - Penalty
8.0516 Licensee’s Responsibility
8.0517 Gambling Prohibited - Exceptions
8.0518 Cashing Certain Checks Prohibited
8.0519 Sales Prohibited - Persons
8.0520 Age Identification
8.0521 Street Sales Prohibited
8.0522 Premises, Equipment of
8.0523 Closed or Screened Areas
8.0524 Purchase from Licensed Wholesaler
8.0525 Toilets Required
8.0526 Deliveries - Off Licensed Premises
8.0527 Termination or Revocation of Licenses
8.0528 Penalties
ARTICLE 6 - Shows, Carnivals and Circuses
8.0601 License Required
8.0602 Fees for
ARTICLE 7 - Validity
8.0701 Validity
85
ARTICLE 8 - Penalty
8.0801 Penalty
86
CHAPTER EIGHT
BUSINESS REGULATIONS AND LICENSES
ARTICLE 1 - General Provisions
8.0101 Licenses
Unless otherwise specifically provided, licenses and permits required for the carrying on of a business or trade within the City shall be applied for, issued, terminated and revoked according to the provisions of this article.
8.0102 Licenses - Application
Any person desiring a license or permit under any ordinance of the City shall make a written application to the City therefore upon application blanks furnished by the City Auditor and shall file the same with the City Auditor. The application shall state the purpose for which the license or permit is desired, for what length of time, the place where the business is to be carried on and the proposed sureties on any required bonds.
8.0103 Licenses - Granting
The City Auditor shall receive applications for licenses and permits and grant the same in all cases where expressly authorized upon the terms and conditions specified by ordinance. If the City Auditor shall not feel authorized to grant any particular application for license or permit for any purpose not clearly named by ordinance, the City Auditor shall report such application to the next meeting of the City Council for their action thereon.
8.0104 Licenses - Term
1. No license or permit shall be granted for a longer period than one (1) year.
2. All yearly licenses or permits shall commence on the first day of January in each year and expire on the last day of December in each year. All semi-annual licenses or permits shall commence on the first day of January and the first day of July and expire on the last day of June and the last day of December respectively.
3. No license or permit shall be valid until signed and sealed nor shall any person be deemed licensed until a license shall be duly issued to him or her.
87
4. Each license shall be dated the day of issuance thereof; but if the applicant or applicants shall have been acting without a license, the license shall commence with the date business commenced. If the business calls for a yearly license, then a license shall commence on the first day of January in the year for which the license shall be issued.
5. The date of issuance of the license, together with the time of commencing and expiration shall be given in the license and the license record.
8.0105 Licenses - Not Transferable
No license or permit shall be assignable or transferable except by permission of the City Council. No person other than the person to whom the license is granted shall be authorized to do business or act under such license or at any other than the place specified therein. The City may grant the continuance of the business licensed to any other portion of the City, such permission to be certified on the license by the City Auditor. No license shall authorize any person to act under it at more than one (1) place at the same time, or at any other place than is therein specified. Whoever shall violate any of the provisions of this section shall be deemed to be acting without a license and shall be subject to the same penalty as prescribed for acting without a license.
8.0106 Licenses - Revocation
All licenses granted shall be subject to ordinances in force at the time of issuing thereof or which may be subsequently passed by the City Council. Any person who shall violate any provision of this article relating to his or her license may be proceeded against for any fine or penalty imposed thereby, and his or her license may be revoked or forfeited in the discretion of the City Council or the court before which any action may be brought for the recovery of any fine or penalty.
Where not otherwise provided, any license may be revoked by the City Council at any time for cause. “Cause” shall include, but not be limited to, the following:
1. Violation of the laws of the State of North Dakota or any of the ordinances of the City dealing with or pertaining to the business or trade licensed.
2. The willful making of any false statement as to a material fact in the application for license.
88
3. Permitting any disorderly or immoral practices upon the premises where the licensee is licensed to carry on the business or trade.
4. The death of a licensee.
5. When the licensee ceases business at the location licensed.
When the license is terminated or revoked for cause, the licensee shall not be entitled to any return of any portion of the license fee previously paid to the City.
8.0107 Licenses - Posting of
All licenses and permits issued by the City for the operation of any business establishment, trade or any part of the operation thereof, shall be posted in a conspicuous place in the main business establishment.
8.0108 Licenses - Short Term
No license, unless otherwise specified, shall be issued for a fractional part of the year or half-year, but shall relate back if taken out subsequent to the first day of January or July respectively, of each year.
8.0109 Licenses - Enforcement
All city officials having duties to perform with reference to licensed premises, including all police officers, shall have authority to enter the licensed premises with or without a search warrant to check for violations of ordinances or state laws by the licensee.
ARTICLE 2 - Transient Merchants
8.0201 Definitions
For the purpose of this article:
1. “Transient merchant” includes any person, partnership or corporation who engages in, does or transacts any temporary or transient business in the City of Center or within ½ mile of the municipal limits, either in one locality or in traveling from place to place selling goods, wares and merchandise who does not intend to become a permanent merchant of the City and who, for the purpose of carrying on such business, hires, leases, occupies or uses a building, structure, lots, tract, or motor vehicles for the exhibition and sale of such goods, wares and merchandise. The person, individual, co-partnership or corporation so engaged shall not be relieved from complying with the
89
provisions of this article by reason of associating temporarily with any local dealer, merchant or auctioneer or by conducting such transient business in connection with, as a part of, or in the name of any local dealer, merchant or auctioneer.
2. “Merchandise” shall not include any livestock or agricultural product.
8.0202 License Required
It shall be unlawful to do business in the City as a transient merchant without having first secured a license as is herein provided. For the purpose of this article, any merchant engaging or intending to engage in business as a merchant in the City for a period of time not exceeding 100 days shall be considered as a transient merchant, provided that peddlers shall not be considered transient merchants.
8.0203 License Fee
The license fee to be required of all transient merchants for the transaction of such business within the City is hereby fixed at the sum of $25.00 per day for each and every day during which any such transient merchants shall transact business in the City. (Source: NDCC Section 51-04-09)
8.0204 License - Application for
Applicants for license under this article, whether an individual, partnership or corporation, shall file with the City Auditor a written sworn application signed by the applicant if an individual, by all partners if a partnership and by the president if a corporation or limited liability company, showing:
1. Applicant’s name, present residence, present home address, present business address, and if a corporation or limited liability company, under the laws of what state the same is incorporated;
2. The name, present residence, present home address and present business address of the person or persons having the management or supervision of applicant’s business during the time that it is proposed that it will be carried on in the City;
3. The residence, business address and type of business in which applicant has been engaged in the previous two (2) years;
4. The residence, business address and type of business in which the person having the management or supervision of applicant’s business has been engaged in the previous two (2) years;
90
5. The place or places in the City, where it is proposed to carry on applicant’s business, and the length of time during which it is proposed that said business shall be conducted;
6. The kind of business to be conducted;
7. The name and address of the auctioneer, if any, who will conduct the sale; and
8. A statement of the nature, character and quality of the goods, wares or merchandise to be sold or offered for sale by applicant in the City, the invoice value and quality of such goods, wares and merchandise, whether the same are proposed to be sold from stock in possession or by sample; at auction, by direct sale or by indirect sale and by taking orders for future delivery; where the goods or property proposed to be sold are manufactured or produced, and where such goods or products are located at the time said application is filed.
8.0205 Bond
Before any license shall be issued to a transient merchant for engaging in business in this City, the applicant therefore shall file with the City Auditor a bond in favor of the City in the sum of $1,000 executed by the applicant, as principal, and a responsible surety upon which service of process may be made in the State of North Dakota; said bond not to be revocable nor to terminate prior to passage of two years time after the expiration of the license issued pursuant thereto nor until due notice that the terms of the bond are to be cancelled has been given to the City Auditor. The bond is to be approved by the city attorney, conditioned that the applicant shall comply fully with all of the provisions of the ordinances of the City and the statutes of the State of North Dakota regulating and concerning the sale of goods, wares and merchandise and will pay all judgments rendered against the applicant for any violation of said ordinances or statutes, together with all judgments and costs that may be recovered against him by any person or persons for damage growing out of any misrepresentation or deception practiced on any person transacting business with the applicant, whether misrepresentations or deceptions were made or practiced by the owners or by their servants, agents or employees, of any character whatsoever, printed or circulated with reference to the goods, wares and merchandise sold or any part thereof. Action on the bond may be brought in the name of the City to the use of the aggrieved person.
8.0206 Service of Process
Before any license as herein provided shall be issued for engaging in business as a transient merchant, as herein defined, in this City, such applicant shall file with the City Auditor an instrument nominating and appointing the City
91
Auditor his true and lawful agent with full power and authority to acknowledge service of notice of process for and on behalf of the applicant in respect to any matters connected with or arising out of the business transacted under the license and the bond given as required by this article, or for the performance of the conditions of said bond or for any breach thereof. This instrument shall also contain recitals to the effect that the applicant for license consents and agrees that service of any notice or process may be made upon said agent, and when so made shall be taken and held to be as valid as if personally served upon the person or persons applying for the license under this article, and waiving all claim or right of error by manner of service. Immediately upon service of process upon the City Auditor, as herein provided, the City Auditor shall send to the licensee at his last known address, by registered mail, a copy of said process.
8.0207 Exhibiting License
The license issued under this article shall be posted conspicuously in the place of business named therein. In the event that such person applying for a license shall desire to do business in more than one place within the City, copies of such license shall be posted conspicuously in each place of business.
8.0208 Transfer
Any license issued to a transient merchant in the City shall be non-transferable.
8.0209 Revocation
1. Any license issued pursuant to this article may be revoked by the City Council, after notice and hearing, for any of the following causes:
a. Any fraud, misrepresentation or false statement contained in the application for license;
b. Any fraud, misrepresentation or false statement made in connection with the selling of goods, wares or merchandise;
c. Any violation of this article;
d. Conviction of the licensee of any felony or of a misdemeanor involving moral turpitude; or
e. Conducting the business licensed under this article in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public.
92
2. Notice of hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of the complaint and the time and place of the hearing. Such notice shall be mailed, postage prepaid, to the licensee at his last known address at least five (5) days prior to the date set for the hearing.
8.0210 Expiration of License
All licenses issued under the provisions of this article shall expire at the expiration of the period for which application has been made and prepaid, to be renewable by the City Auditor upon application and payment therefore.
ARTICLE 3 - Hawkers and Peddlers
8.0301 Definitions
The words “hawker” and “peddler” as used herein shall include any person, partnership, corporation, or other organization, whether a resident of the City or not, traveling by foot, automotive vehicle or other type of conveyance from place to place, or house to house, carrying, conveying or transporting goods or merchandise, offering and exposing the same for sale, or making sales and delivering articles to purchasers, or sells from an automotive vehicle or other vehicle or conveyance.
8.0302 License Required
It shall be unlawful for any person to engage in the business of hawker or peddler of any merchandise, article or thing without having first secured a license therefore.
8.0303 Exceptions
No license shall be required for peddling, vending or marketing farm products raised in the State of North Dakota, or fish, vegetables, fruits, nuts, cake, candy, ice cream or other light products or refreshments.
8.0304 License - Application for
Applicants for license under this article must file with the City Auditor a sworn application in writing, which shall give the following information:
1. Name, age and sex of the applicant;
2. Address (legal and local);
93
3. A brief description of the nature of the business and the goods to be sold;
4. If employed, the name and address of the employer, together with credentials establishing the exact relationship;
5. The length of time for which the right to do business is desired;
6. If a vehicle is to be used, a description of the same, together with license number; and
7. A statement as to whether or not the applicant has been convicted of any crimes, misdemeanors or violations of any municipal ordinance, the nature of the offense(s) and the punishment or penalty assessed therefore.
8.0305 Fees
The license fee to be required of all hawkers and peddlers for the transaction of business within the City shall be in the sum of $25.00 per day for each day or portion of the day which any such hawker or peddler shall transact business in the City.
8.0306 Exhibition of License
Hawkers and peddlers are required to exhibit their licenses at the request of any citizen.
8.0307 Transfer
Any license issued under the provisions of this article shall be non-transferable.
8.0308 Use of Streets
No hawker or peddler shall have any exclusive right to any location in the public streets, nor be permitted to operate in any congested area where the operations might impede or inconvenience the public. For the purpose of this article, the judgment of a police officer, exercised in good faith, shall be deemed conclusive as to whether the area is congested or the public impeded or inconvenienced.
94
8.0309 Revocation
1. Licenses issued under the provisions of this article may be revoked by the City Council of the City after notice and hearing for any of the following causes:
a. Fraud, misrepresentation or false statement contained in the application for license;
b. Fraud, misrepresentation or false statement made in the course of carrying on his business;
c. Any violation of this article;
d. Conviction of any crime or misdemeanor involving moral turpitude;
e. Conducting the business of hawking or peddling in an unlawful manner or in such a manner as to constitute a breach of peace or constitute a menace to the health, safety or general welfare of the public.
2. Notice of a hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of complaint and the time and place of hearing. Such notice shall be mailed, postage prepaid, to the licensee at the licensee’s last known address at least five (5) days prior to the date set for the hearing.
ARTICLE 4 - Runners, Solicitors and Canvassers
8.0401 Definitions
A “runner,” “canvasser” or “solicitor” is defined as any individual, whether resident of the City or not, traveling either by foot, motor vehicle or any other type of conveyance, from place to place, taking or attempting to take orders for sale of goods, wares and merchandise, personal property of any nature whatsoever for future delivery, or for services to be furnished or performed in the future. The definition shall include any person who, for himself, or for another person, firm or corporation hires, leases, uses or occupies any building, structure, tent, railroad boxcar, boat, hotel room, lodging house, apartment, shop or any other place within the City for the sole purpose of exhibiting samples and taking orders for future delivery.
95
8.0402 Exceptions
No license shall be required hereunder for runners, solicitors or canvassers of regular retailers of goods, wares and merchandise and personal property, but only for those runners, solicitors and canvassers selling directly to the consumer.
8.0403 License Required
It shall be unlawful for any person to engage in the business of runners, solicitors and canvassers of any merchandise, article or thing without having first secured a license therefore.
8.0404 License - Application for
Applicants for license under this article must file with the City Auditor a sworn application in writing, which shall give the following information:
1. Name, age and sex of the applicant;
2. Address (legal and local);
3. A brief description of the nature of the business and the goods to be sold;
4. If employed, the name and address of the employer, together with credentials establishing the exact relationship;
5. The length of time for which the right to do business is desired;
6. If a vehicle is to be used, a description of the same, together with license number; and
7. A statement as to whether or not the applicant has been convicted of any crimes, misdemeanors or violations of any municipal ordinance, the nature of the offense(s) and punishment or penalty assessed therefore.
8.0405 Fees
The license fee to be required of all runners, solicitors and canvassers for the transaction of business within the City shall be in the sum of Twenty-five dollars ($25.00) per day for each day or portion of the day which such runner, solicitor or canvasser shall transact business in the City.
96
8.0406 Exhibition of License
Runners, solicitors and canvassers are required to exhibit their licenses at the request of any citizen.
8.0407 Transfer
Any license issued under the provisions of this article shall be non-transferable.
8.0408 Use of Streets
No runner, solicitor or canvasser shall have any exclusive right to any location in the public streets, nor shall any be permitted a stationary location, nor shall he be permitted to operate in any congested area where his operations might impede or inconvenience the public. For the purpose of this article, the judgment of a police officer, exercised in good faith, shall be deemed conclusive as to whether the area is congested or the public impeded or inconvenienced.
8.0409 Revocation
1. Licenses issued under the provisions of this article may be revoked by the City Council of the City after notice and hearing, for any of the following causes:
a. Fraud, misrepresentation or false statement contained in the
application for license;
b. Fraud, misrepresentation or false statement made in the course of carrying on his or her business;
c. Any violation of this article;
d. Conviction of any felony or misdemeanor involving moral turpitude;
e. Conducting the business of soliciting and canvassing in an unlawful manner or in such a manner as to constitute a breach of peace or constitute a menace to the health, safety or general welfare of the public.
2. Notice of a hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of complaint and the time and place of hearing. Such notice shall be mailed, postage prepaid, to the licensee at his last known address at least five days prior to the date set for the hearing.
97
ARTICLE 5 - Alcoholic Beverages
8.0501 Definitions
For the purpose of this article:
1. “Alcoholic beverages” shall mean any liquid suitable for drinking by human beings, which contains one-half of one percent or more of alcohol by volume.
2. “Beer” shall mean any malt beverage containing more than one-half of one percent of alcohol by volume.
3. “Licensee” shall mean any person, firm, corporation, association or club which shall have secured a license pursuant to provisions of this chapter or their agent or employee.
4. “Liquor” shall mean any alcoholic beverage except beer.
5. “Person” shall mean and include any individual, firm, corporation, association, club, co-partnership, society or any other organization; and shall include the singular and the plural.
6. “Sale” and “sell” shall mean all manner or means of furnishing alcoholic beverages, including the selling, exchange, barter, disposition of and keeping for sale of such alcoholic beverages.
7. “Package” and “original package” shall mean and include any container or receptacle containing an alcoholic beverage, which container or receptacle is corked or sealed by the manufacturer thereof and which cork or seal has not been removed or broken prior to the sale of such package to the purchaser.
8. “Club” or “lodge” shall include any corporation or association organized for civic, fraternal, social or business purposes or the promotion of sports, which has at least 200 members at the time of application for license.
9. “Retail sale” shall mean the sale of alcoholic beverages for use or consumption and not for resale.
10. “Off-sale” shall mean the sale of alcoholic beverages in original packages for consumption off or away from the premises where sold, and an off-sale license shall authorize the person named therein to conduct such off-sales only at the place designated in such license and not elsewhere, and shall not permit the opening of the package
98
sold on the premises where sold. Such sale must in each case be completed by delivery of the liquor sold to the actual purchaser thereof on the licensed premises.
11. “On-sale” shall mean the sale of alcoholic beverages for consumption only on the premises where sold, and an on-sale license shall authorize the licensee to conduct such on-sales only at the place designated in such license and not elsewhere.
8.0502 Exceptions
1. This article shall not apply to wines delivered to priests, rabbis and ministers for sacramental use.
2. This article shall not be construed to apply to the following articles, when they are unfit for beverage purposes:
a. Denatured alcohol produced and used pursuant to Acts of Congress and the regulations thereunder.
b. Patent, proprietary, medical, pharmaceutical, antiseptic and toilet preparations.
c. Flavoring extracts, syrups and food products.
d. Scientific, chemical and industrial products; nor to the manufacturer or sale of said articles containing alcohol.
8.0503 License Required
No person shall sell at retail within the Center city limits any alcoholic beverage without first having obtained a license therefore as herein provided. This section shall not apply to public carriers engaged in interstate commerce.
8.0504 Licenses - Classes of - Fees
1. An on- and off-sale liquor license has an annual fee of nine hundred and no/100 ($900.00).
2. An on- and off-sale beer and wine license has an annual fee of three hundred and no/100 ($300.00).
3. An off sale liquor license has an annual fee of six hundred and no/100 ($600.00).
99
4. An off sale beer and wine license has an annual fee of two hundred and no/100 ($200.00).
5. An on sale beer and wine license has an annual fee of two hundred and no/100 ($200.00).
8.0505 Licenses - Term of
1. All licenses issued hereunder shall be for a period of not more than one (1) year and shall expire on the 31st day of December in each year. Where a license is granted for a period less than one (1) year, any subsequent renewal thereof must be made for the full annual term.
2. If an application is made for license hereunder during the license year for the unexpired portion of such year, the fees for said license shall be pro-rated to represent the number of months during which said license will be in effect.
8.0506 License - Qualifications for
No retail license shall be issued to any person unless the applicant shall file a sworn application, accompanied by the required fee, showing the following qualifications:
1. Applicant, if an individual, must be a citizen of the United States, a resident of the State of North Dakota and a person of good moral character.
2. If applicant is a corporation or limited liability company, the manager of the licensed premises and the officers, directors, stockholders, or owners must be citizens of the United States and persons of good moral character. Corporate applicants must first be properly registered with the North Dakota Secretary of State.
3. If applicant is a partnership, all the members must be citizens of the United States, residents of North Dakota, and of good moral character.
4. Applicant or manager must not have been convicted of a felony.
5. Building in which business is to be conducted must meet local and state requirements regarding the sanitation and safety.
6. Taxes on property for which application for license is made must not be delinquent.
100
7. If applicant’s place of business is to be conducted by a manager or agent, said manager or agent must possess the same qualifications required of the licensee.
8.0507 Application for Liquor License
Any person desiring a license to sell alcoholic beverages at retail as hereinbefore described shall make and present a written verified application to the City Council, filed with the City Auditor, containing the following information:
1. The name and address of the applicant; if the applicant is a partnership, the name and address and place of residence of each member of said partnership; if the applicant is a corporation or limited liability company, the name and address of the officers of the corporation or company and the manager of the licensed premises.
2. Whether the applicant is a citizen of the United States, if the applicant is a partnership the same preceding information for each member of said partnership; and if the applicant is a corporation or limited liability company, the date of incorporation, the state where incorporated, the purpose for which said corporation was incorporated and if such corporation is a subsidiary of any corporation, the name of the parent corporation.
3. The legal description and the address of the premises for which license is sought.
4. The date on which the applicant acquired title to the premises sought to be licensed, and if the applicant does not have title to said premises, the name and address of the owner of the premises together with a copy of the applicant’s lease, if written, under which he holds possession of said premises.
5. Whether there are any delinquent taxes against the premises sought to be licensed.
6. Whether the applicant has ever engaged in the sale or distribution of alcoholic beverages prior to this application, and if so, the date and type of business and place where so engaged whether within or without the State of North Dakota, the date the applicant first began to operate.
7. Whether the applicant has ever been convicted of the violation of any law of the United States or of any state, or of any local ordinance with regard to the manufacture, sale, distribution or possession of
101
alcoholic beverages, and if so, the dates, names of place and courts in which said convictions were had.
8. Whether the applicant has ever had a license for the sale of alcoholic beverages revoked for any violation of state laws or local ordinances, and if so, the names of the bodies revoking such license, the dates of such revocation and the reasons assigned therefore.
9. Whether the applicant has ever been convicted of any felony crime, in this state or any other state, or under any federal law, and if so, the date of such conviction, the name of the crime for which convicted, the amount and terms of sentence passed, and the court in which convicted.
10. Whether the applicant has any interest whatsoever directly or indirectly, in any other establishment dispensing alcoholic beverages, either at wholesale or retail, within or without the State of North Dakota, and if so, the names and addresses of such establishments. This provision is meant to include the holders of capital stock in any corporation dealing in alcoholic beverages, either at wholesale or retail, within the borders of the United States.
11. The classification of license applied for.
12. If the applicant is a lodge or a club, the date of organization, the number of members, the purpose for which organized and the purpose for which profits to be derived from the sale of alcoholic beverages are to be applied; and whenever required by the City Council a list of the members belonging to such lodge or club.
13. A statement by the applicant that he consents to entry and inspection of the premises for which license is sought at any time by any officer of this City, Oliver County, or the State of North Dakota.
8.0508 License - Applicant Fitness
The Chief of Police or such other person or officer as may be designated by the City Council shall, upon the filing of an application, investigate the facts as stated in the application and the character, reputation and fitness of the applicant and shall report on said matters to the City Council.
8.0509 License - Location of
No license shall be issued or transferred to any person, firm or corporation to engage in the sale of beer or alcoholic beverages within the City without approval as to the location of said licensed business by the City Council. The
102
application for approval shall be in writing and shall be filed with the Auditor. At the time of hearing, the board shall in its discretion determine if said location is in harmony with the public interest and welfare of the community and shall consider among other things the following factors:
1. The convenience of police regulations.
2. Public health and sanitation.
3. Proximity to other licensed businesses.
4. Proximity to residential property, schools, churches, funeral homes, public buildings or buildings used by or for minors.
5. Any protests of neighboring property owners or occupants.
6. Zoning regulations.
7. Interference with neighboring property.
8. Suitability of premises for sale of beer, liquor or alcoholic beverages.
9. Public convenience and necessity.
8.0510 License - Granting
After the City Council has received the application as provided herein, it shall meet and consider the same. If it finds that the applicant meets the qualifications for a license and is satisfied as to the completeness and the accuracy of the information contained in the application, it may grant the license. If it finds that the applicant does not meet with the qualifications or it is not satisfied as to the completeness or accuracy of the information, it may request that the applicant supply more verified information or may reject the application.
8.0511 License - Limit to One Applicant
Not more than one license of each classification shall be issued or granted to any applicant; and each license shall be valid only for the specific premises licensed.
8.0512 License - Posting of
A license issued hereunder shall be posted in a conspicuous place in the premises for which the license has been issued.
103
8.0513 License - Transfer of
Any license under the provisions of this article shall be non-transferable and any attempt to do so shall constitute a violation of the provisions of this article.
8.0514 License Fees - Disposition of
All license fees collected under this article shall be transferable to the City Auditor and credited to the general fund of the City.
8.0515 Hours and Time of Sale - Penalty
Anyone who dispenses or permits the consumption of alcoholic beverages on a licensed premises after one o’clock a.m. on Sundays, before eight o’clock a.m. on Mondays or between the hours of one o’clock a.m. and eight o’clock a.m. on all other days of the week or who so dispenses or permits such consumption after one o’clock a.m. on Thanksgiving Day, on Christmas Day, or after six o’clock p.m. on Christmas Eve is guilty of an offense. Anyone licensed by the City Council to sell alcoholic beverages may apply to the City Council for a permit to sell alcoholic beverages under that license during the hours from twelve noon on Sundays to one o’clock a.m. on Mondays. The authority for issuing the permit rests solely with the City Council. The fee for this permit shall be set by resolution of the City Council. (Source: NDCC Section 5-02-05, 5-02-05.1) Any licensee without an annual Sunday permit wishing to dispense or permit the consumption of alcoholic beverages between the hours of twelve noon on Sunday and one o’clock a.m. on Monday may apply for a Sunday alcoholic beverage permit from the City Council. The fee for the permit is five dollars for each Sunday the licensee is allowed to sell alcoholic beverages (Source: NDCC Section 5-02-05.1)
8.0516 Licensee’s Responsibility
Every licensee is responsible for the conduct of the licensee’s place of business and is required to maintain order and sobriety and permit no disorderly conduct on the premises. Alcoholic beverages shall not be served to any intoxicated person nor shall any intoxicated person be permitted to remain upon the premises.
8.0517 Gambling Prohibited - Exceptions
No licensee hereunder shall be permitted to have or maintain on the licensed premises any gambling device, slot machine, punch board or any other machine or device of similar nature, nor shall gambling whether by cards, dice or otherwise, of any nature, be permitted upon the licensed premises. Any violation of this section shall be sufficient cause for the revocation of the license issued
104
hereunder, and such license shall be revoked upon conviction of any such violation. This section shall not apply to gambling or games of chance conducted by a licensee under the authority of a valid and subsisting permit issued by the City Council or license issued by the State of North Dakota.
8.0518 Cashing Certain Checks Prohibited
No licensee hereunder shall cash any bank check, voucher, order or document of any kind drawn by a county welfare board or any state or federal agency in payment for wages made for work done on any so-called work relief project, or for relief purposes, which by its terms authorizes or permits any person presenting such bank check, voucher, order or document to receive payment of money.
8.0519 Sales Prohibited - Persons
No licensee, his agent or employee shall sell any alcoholic beverages to a person under twenty-one (21) years of age, a habitual drunkard, an incompetent or an intoxicated person.
8.0520 Age Identification
Before selling alcoholic beverages to any person, or before determining whether any person shall remain upon the licensed premises a licensee, his agent or employee may require a statement in writing and signed by said person of such person’s age. Any person who makes a false statement as to his or her age, or signs a name other than his own or her own to any such statement, shall be guilty of a violation of this article.
8.0521 Street Sales Prohibited
The sale or consumption of alcoholic beverages upon or across any street, alley or public way is prohibited unless specifically allowed by the City Council for special events.
8.0522 Premises, Equipment of
Premises licensed hereunder for on-sale alcoholic beverages shall be equipped with tables, chairs, booths and stools in a sufficient number to reasonably accommodate the patrons.
8.0523 Closed or Screened Areas
No premises licensed for on-sale of alcoholic beverages shall contain any side rooms, closed booths or other screened enclosures nor shall any screen, partition, curtain, blind or obstruction of any kind prevent a clear view at all times
105
of all parts of the interior of the premises licensed. All booths located in such premises shall open directly into the main part of said premises and shall be accessible from the aisles therein.
8.0524 Purchase from Licensed Wholesaler
No licensee hereunder shall purchase, have or possess any alcoholic beverages other than those purchased from a wholesaler duly licensed by the State of North Dakota pursuant to the provisions of NDCC Title 5. Each licensee hereunder shall keep on file all invoices covering purchases by him of such alcoholic beverages showing the name and license number of the wholesaler. Such records shall be retained in the possession of the licensee and shall be at all times open to inspection by any police officer or peace officer of the State of North Dakota.
8.0525 Toilets Required
Premises where an on-sale license is granted must be equipped with adequate and sufficient lavatories and toilets, separately maintained for men and women, and kept in a clean and sanitary condition. The on-sale license may be revoked when the foregoing requirements, or any other health ordinance or regulation, are not at all times strictly observed.
8.0526 Deliveries - Off Licensed Premises
1. It shall be unlawful for any person, firm or corporation engaged in the retail sale of liquor, beer or alcoholic beverages to make, or cause to be made any deliveries outside of the licensed place of business of beer, liquor or other alcoholic beverages to any purchaser or prospective purchaser.
2. It shall be unlawful for any person, firm or corporation to deliver by foot, carrier or motor carrier, any beer, liquor or alcoholic beverage to any person within the city limits provided however, that this section shall not apply to deliveries made by a licensed wholesaler dealer to a licensed retail dealer.
8.0527 Termination or Revocation of Licenses
1. Licenses issued pursuant to this article shall be deemed cancelled and revoked and terminated upon the happening of any one or more of the following contingencies:
a. The death of the licensee unless upon application to the City Council by personal representative of the decedent, the City
106
Council shall consent to the carrying on of the business by the personal representative.
b. The licensee ceases business at the location licensed, unless a new location has been approved.
c. The licensee is adjudged bankrupt.
d. The licensee is convicted of the violation of any provision of this article, or of the laws of the State of North Dakota pertaining to alcoholic beverages or of a felony under the laws of the United States, the State of North Dakota or any other state.
e. The licensee ceases to possess the qualifications required of an applicant for a license as set out in this article.
f. The license or permit of the licensee from the State of North Dakota to sell alcoholic beverages at the location licensed has been terminated or been revoked.
g. The licensee ceases to be a legal bona fide resident and citizen of the State of North Dakota.
2. Licenses issued pursuant to this ordinance may, in the discretion of the City Council, be either revoked or suspended for such period of time as deemed appropriate, upon the following grounds:
a. When the licensee has been convicted of violating any of the provisions of this article.
b. When the business of the licensee at the location licensed shall be conducted in violation of health or sanitary regulations or other ordinances of the City.
c. When the licensee, if an individual, or one of the partners, if the licensee is a partnership, or one of the officers or the manager if the licensee is a corporation, be convicted of disorderly conduct, or, if an appeal is taken from such conviction, when such conviction is sustained by the higher court.
3. Such causes as are hereinbefore detailed shall not be deemed to be exclusive and such license may also be cancelled and revoked or suspended at any time by the City Council for any cause deemed by the City Council to be sufficient cause and justified by reason of public health or public morals. Such termination shall be subject only to review by the courts of the State of North Dakota.
107
4. When any license is terminated or revoked for cause, or the licensee voluntarily ceases his business, no portion of the license fee previously paid shall be returned to the licensee or to anyone claiming under or through him.
8.0528 Penalties
Any person, firm, corporation, limited liability company, or association violating any of the provisions of this article shall upon conviction thereof, be subject to a fine of not to exceed five hundred dollars ($500.00), and/or imprisonment of not to exceed thirty (30) days; and, in addition, all rights and privileges given by any license granted under the terms of this article may be terminated or revoked in accordance with section 8.0527 of this article.
ARTICLE 6 - Shows, Carnivals and Circuses
8.0601 License Required
No person, firm, association or corporation or limited liability company shall exhibit or cause to be exhibited or assist in exhibiting any natural or artificial curiosity or conduct a circus, menagerie, tent show, carnival or carnival show, continuous theatrical performance, shooting gallery or other like exhibition without first obtaining license from the City.
8.0602 Fees for
The fees to secure license to conduct the exhibitions mentioned in the foregoing section shall be as follows:
Any carnival, per day……$15.00
Any circus, per day……...$15.00
In addition to the above fees, any carnival or circus granted a license shall deposit with the City Auditor cash bond in the amount of Two hundred dollars ($200.00) guaranteeing that the premises upon which such carnival or circus is located shall be cleaned after the showing of such carnival or circus to the satisfaction of the Street Commissioner upon certification of the Street Commissioner to the Auditor that the same has been done said cash deposit shall be returned to the licensee. An additional fee in an amount up to Five hundred dollars ($500.00), to be fixed by the City Council, may be required to be paid at the time of obtaining the license to provide for additional fire and police protection in connection with the showing of such carnival or circus.
108
ARTICLE 7 - Validity
8.0701 Validity
If any section, part, article or provision of this chapter or the application thereof to any person, firm, corporation, limited liability company, or association, or to any circumstances, shall be held to be invalid for any cause whatsoever, the remainder of this ordinance or the application to persons, firms, corporations, companies or circumstances other than those as to which it is held to be invalid, shall not be affected thereby, and shall remain in full force and effect as though no part thereof had been declared to be invalid.
ARTICLE 8 - Penalty
8.0801 Penalty
Any person, firm, corporation or association violating any of the terms, articles or provisions of this chapter, for which a specific penalty is not prescribed, shall upon conviction thereof, be punished by a fine not to exceed five hundred dollars ($500.00), and/or imprisonment not to exceed thirty (30) days. The court may, in addition thereto, revoke the permit of such violator, or terminate or revoke all rights and privileges given by any license granted under the terms of this chapter. Each day or part thereof that a person shall be in violation of the provisions of this chapter shall be considered a separate violation thereof.
109
CHAPTER NINE
TRAFFIC
ARTICLE 1 - Definitions
9.0101 Definitions
ARTICLE 2 - Traffic Administration
9.0201 Duty of Police Department
9.0202 Records of Traffic Violations
9.0203 Police Department to Investigate Accidents
ARTICLE 3 - Enforcement and Obedience to Traffic Regulations
9.0301 Authority of Police and Fire Department Officials
9.0302 Obedience to Traffic Ordinances
9.0303 Obedience to Police Officers or Firemen
9.0304 Certain Non-motorized Traffic to Obey Traffic Regulations
9.0305 Operation of Vehicles on Approach of Authorized Emergency Vehicles
9.0306 Written Report of Accident
ARTICLE 4 - Traffic Control Devices
9.0401 Authority to Install
9.0402 Specifications for
9.0403 Obedience to Traffic Control Devices
9.0404 Unauthorized Signs
9.0405 Interference with Official Traffic Control Device or Sign
9.0406 Designation of Walks, Lanes, Etc.
ARTICLE 5 - Speed Regulations and Care Required
9.0501 Basic Rules - Penalty for Violation
9.0502 Speed Limitations
9.0503 When Local Authorities May or Shall Alter Maximum Speed - Limits - Signs Posted
9.0504 Speed Limitations Inapplicable to Whom - Liability of Exempt Driver for Reckless Driving
9.0505 Regulations of Speed by Traffic Signals
9.0506 Exhibition Driving and Drag Racing - Definitions - Penalty
9.0507 Radar Evidence in Speed Violations
9.0508 Care Required in Operating Vehicle
110
ARTICLE 6 - Turning Movements
9.0601 Limitations on Turning Around
9.0602 Signals by Hand and Arm or Signal Lamps
ARTICLE 7 - Special Stops
9.0701 Signs
9.0702 Stop Signs and Yield Signs
9.0703 Emerging from Alley or Driveway
ARTICLE 8 - Operators
9.0801 Operators - Who Prohibited
ARTICLE 9 - Miscellaneous Driving Rules
9.0901 When Traffic Obstructed
9.0902 Driving Through Funeral or Other Procession
9.0903 Drivers in a Procession
9.0904 Funeral Processions to be Identified
9.0905 When Permits Required for Parades and Processions
9.0906 Drive on Right Side of Roadway - Exceptions
9.0907 Passing Vehicles Proceeding in Opposite Direction
9.0908 When Overtaking on the Right is Permitted
9.0909 Limitations on Overtaking on the Left
9.0910 Further Limitations on Driving on Left of Center of Roadway
9.0911 No-Passing Zones
9.0912 Following Too Closely
9.0913 Vehicle Entering Roadway
9.0914 Vehicle Approaching or Entering Intersection
9.0915 Overtaking and Passing Schoolbus
9.0916 Unattended Motor Vehicle
9.0917 Limitations on Backing
9.0918 Obstruction to Driver’s View or Driving Mechanism
9.0919 Following Fire Apparatus Prohibited
9.0920 Crossing Fire Hose
9.0921 Garbage, Glass, Etc. on Highways Prohibited
9.0922 Permitting Unauthorized Minor to Drive
9.0923 Permitting Unauthorized Person to Drive
ARTICLE 10 - Pedestrians’ Rights and Duties
9.1001 Pedestrian Obedience to Traffic Control Devices and Traffic Regulations
9.1002 Pedestrians’ Right-of-Way in Crosswalks
111
9.1003 Crossing at Other than Crosswalks
9.1004 Drivers to Exercise Due Care
9.1005 Pedestrians to Use Right Half of Crosswalks
9.1006 Pedestrians on Roadways
9.1007 Pedestrians’ Right-of-Way on Sidewalks
9.1008 Pedestrians Yield to Authorized Emergency Vehicles
9.1009 Blind Pedestrians’ Right-of-Way
ARTICLE 11 - Regulations for Motorcycles
9.1101 Traffic Laws Apply to Persons Operating Motorcycles or Motorized Bicycles
9.1102 Riding on Motorcycles
9.1103 Operating Motorcycles on Roadways Laned for Traffic
9.1104 Clinging to Other Vehicles
9.1105 Footrests
9.1106 Equipment for Motorcycle Riders
9.1107 Other Applicable Laws
ARTICLE 12 - Regulations for Bicycles
9.1201 Effect of Regulations
9.1202 Traffic Ordinances Apply to Persons Riding Bicycles
9.1203 Riding on Sidewalks
9.1204 Clinging to Vehicles
9.1205 Lamps and Other Equipment on Bicycles
ARTICLE 13 - Angle Parking
9.1301 Angle Parking
9.1302 Close to Curb
9.1303 Method of Parking - Penalty
ARTICLE 14 - Stopping, Standing or Parking Prohibited in Specific Places
9.1401 Parking Prohibited - All Times
9.1402 Stopping, Standing or Parking Outside of Business or Residence Districts
9.1403 Officers Authorized to Remove Illegally Stopped Vehicles
9.1404 Stopping, Standing or Parking Prohibited in Specified Places
9.1405 Additional Parking Regulations
9.1406 Stopping - Parking - Congested - Hazardous Places
9.1407 Stopping - Parking - In Alleys
9.1408 Parking Adjacent to Schools
9.1409 Stopping - Parking - Over 48 Hours
9.1410 Parking Privileges for Mobility-Impaired - Certificate - Revocation
112
ARTICLE 15 - Reserved Parking Areas
9.1501 Reserved Parking Areas
ARTICLE 16 - Time Limit Parking Zones
9.1601 Time Limit Parking Zones
ARTICLE 17 - Equipment of Vehicles
9.1701 Windshield - Must be Unobstructed and Equipped with Wipers - Tinted Windows
9.1702 Child Restraint Devices - Evidence
9.1703 Use of Safety Belts - Enforcement
9.1704 Drawbar or Connection Between Vehicles - Precautions Required
9.1705 Modification of Motor Vehicle
9.1706 Scope and Effect of Equipment Requirements - Penalty
ARTICLE 18 - Lighted Lamps Required
9.1801 When Lighted Lamps are Required
ARTICLE 19 - Regulating the Kinds and Classes of Traffic on Certain Roads
9.1901 Load Restrictions Upon Vehicles Using Certain Roadways
9.1902 Commercial Vehicles Prohibited from Using Certain Streets
9.1903 Size Restrictions Upon Vehicles Using Certain Highways
9.1904 Restrictions Upon Use of Streets by Certain Vehicles
ARTICLE 20 - Criminal Traffic Violations
9.2001 Operation of Snowmobiles
9.2002 Rules for Operation of Snowmobiles
9.2003 Operation of Motor Vehicle, Tractor or Other Vehicle Prohibited on Flood Protective Works - Exception - Penalty
9.2004 Driving Without a License
9.2005 License to be Carried and Exhibited on Demand
9.2006 Penalty
ARTICLE 21 - Disposition of Traffic Offenses
9.2101 Halting Person for Violating Traffic Regulations - Duty of Officer Halting
9.2102 Hearing - Time - Promise of Defendant to Appear - Failure to Appear - Penalty
113
9.2103 Offenses Under Which Person Halted May Not be Entitled to Release Upon Promise to Appear
9.2104 Traffic Violations Non-criminal - Exceptions - Procedures
9.2105 Failure to Appear, Pay Statutory Fee, Post Bond - Procedure - Penalty
9.2106 Amount of Statutory Fees
9.2107 “Nonmoving Violation” Defined
9.2108 “Moving Violation” Defined
9.2109 General Penalty for Violation of Chapter
9.2110 Notification of Parents or Guardians of Juvenile Traffic Offenders
ARTICLE 22 - Sections not Adopted
ARTICLE 23 - Filing of Ordinance
ARTICLE 24 - Adoption of Amendments by Reference
ARTICLE 25 - Severability Clause
ARTICLE 26 - Penalties
114
CHAPTER NINE
TRAFFIC
ARTICLE 1 – Definitions
9.0101 Definitions
Words and phrases used in this chapter shall have the meaning and be defined as provided in NDCC Title 39. NDCC Section 39-01-01 and all subsequent amendments thereto shall be and are hereby incorporated by reference in this ordinance.
ARTICLE 2 – Traffic Administration
9.0201 Duty of Police Department
It shall be the duty of the police department to enforce the street traffic regulations of this City and all of the state vehicle laws, to make arrests for traffic violations, to investigate accidents and to cooperate with the city traffic engineer and other officers of the City in the administration of the traffic laws and in developing ways and means to improve traffic conditions, and to enforce the traffic ordinances of this City.
9.0202 Records of Traffic Violations
1. The police department shall keep a record of all violations of the traffic ordinances of this City or of the state vehicle laws of which any person has been charged, together with a record of the final disposition of all such alleged offenses. Such record shall be so maintained as to show all types of violations and the total of each. Said record shall accumulate during at least a five-year period and from that time on the record shall be maintained complete for at least the most recent five-year period.
2. All forms for records of violations and notices of violations shall be serially numbered. For each month and year a written record shall be kept available to the public showing the disposal of each such form.
3. All such records and reports shall be public record.
115
9.0203 Police Department to Investigate Accidents
It shall be the duty of the police department to investigate traffic accidents in the City, to arrest and to assist in the prosecution of those persons charged with violations of law causing or contributing to such accidents.
Every law enforcement officer, who in the regular course of duty investigates a motor vehicle accident required to be reported as provided in NDCC Section 39-08-09 either at the time and at the scene of the accident or thereafter by interviewing the participants, or witnesses, shall make and forward promptly a written report of such accident to the Director of the North Dakota Department of Transportation.
ARTICLE 3 – Enforcement and Obedience to Traffic Regulations
9.0301 Authority of Police and Fire Department Officials
1. It shall be the duty of the officers of the police department and such officers as are assigned by the Chief of Police to enforce all traffic laws of this City and the State of North Dakota.
2. Officers of the police department and such officers as are assigned by the Chief of Police are hereby authorized to direct all traffic by voice, hand or signal in conformance with traffic laws, provided that, in the event of a fire or other emergency or to expedite traffic or to safeguard pedestrians, officers of the police department may direct traffic as conditions may require notwithstanding the provisions of the traffic laws.
3. Officers of the Fire Department, when at the scene of a fire, may direct or assist the police in directing traffic thereat or in the immediate vicinity.
9.0302 Obedience to Traffic Ordinances
It shall be unlawful for any person to do any act forbidden or fail to perform any act required by the provisions of this Chapter, and upon conviction of a violation of any of the provisions of this Chapter every person, firm or corporation shall be punished as provided in Article 26 of this Chapter.
9.0303 Obedience to Police Officers or Firemen
No person shall willfully refuse to comply with any lawful order or direction of any police officer or fireman invested by law with authority to direct, control, or regulate traffic.
116
9.0304 Certain Non-motorized Traffic to Obey Traffic Regulations
1. Every person propelling any pushcart upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this ordinance and by the rules of the road portion of the state vehicle code, except those provisions which by their very nature can have no application.
2. Every person riding a bicycle or an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this ordinance, except those provisions of this ordinance which by their very nature can have no application.
9.0305 Operation of Vehicles on Approach of Authorized Emergency Vehicles
The provisions of NDCC Section 39-10-26 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon the immediate approach of an authorized emergency vehicle displaying a visible flashing, revolving, or rotating blue, white, or red light, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb or the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
2. Whenever an emergency vehicle is parked or stopped at the scene of an emergency and is displaying a flashing, revolving, or rotating blue, white, or red light, approaching traffic shall move to the right-hand edge or curb of the roadway and shall stop, but once having stopped, traffic may proceed past the scene at its own risk when the roadway is clear, except when otherwise directed by a police officer.
3. This section shall not operate to relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highways.
9.0306 Written Report of Accident
1. Officer to report. Every law enforcement officer, who in the regular course of duty investigates a motor vehicle accident required to be reported as provided in NDCC Section 39-08-09 either at the time
117
and at the scene of the accident or thereafter by interviewing the participants, or witnesses, shall make and promptly forward to the director of the Department of Transportation a report of the accident in a format prescribed by the director. (Source: NDCC Section 39-08-10)
2. Garages to report. The person in charge of any garage or repair shop to which is brought any motor vehicle which shows evidence of having been involved in a reportable accident as provided in NDCC Section 39-08-09 or of being struck by any bullet, shall report or cause a report to be made to a police officer within twenty-four (24) hours after such motor vehicle is received, and before any repairs are made to such vehicle, giving the registration number and the name and address of the owner, operator, or person in control of such vehicle with a description of the location and type of damage to the vehicle, or any missing parts, if the vehicle does not have a sticker on a window thereof issued by a police officer, sheriff or highway patrolman bearing information to show that the accident in which the vehicle was involved had been investigated. The police officer investigating any reportable accident shall attach a sticker to the window of any damaged vehicle showing that the accident in which such vehicle was involved has been investigated. If the vehicle does bear such a sticker the garage or repair shop need not make the report this section requires and may begin repairs immediately. After repairs have been made and before the vehicle is released, the sticker provided herein shall be removed. (Source: NDCC Section 39-07-12)
3. Wrecker and towing services to report. The person in charge of the operator of any commercial towing or wrecker service which causes any motor vehicle to be transported to a private residence or business other than a garage or repair shop which show evidence of having been involved in a reportable accident as provided in NDCC Section 39-08-09 or of being struck by any bullet shall report or cause a report to be made to a police officer within twenty-four hours after such motor vehicle is transported. The report must give the registration number, and the name and address of the owner, operator, or person in control of such vehicle with a description of the location and type of damage to the vehicle, or any missing parts, along with the location such vehicle was transported to, if the vehicle does not have a sticker on a window thereof issued by a police officer, sheriff, or highway patrolman, bearing information to show that the accident in which the vehicle was involved has been investigated. If the vehicle does bear such a sticker the towing or wrecker service need not make the report this section requires. (Source: NDCC Section 39-07-13)
118
ARTICLE 4 – Traffic Control Devices
9.0401 Authority to Install
The city engineer or any person authorized by the City Council shall place and maintain traffic-control signs, signals, and devices when and as required under the traffic ordinances of the City to make effective the provisions of said ordinances, and may place and maintain such additional traffic-control devices as directed by the City, as the City may deem necessary to regulate traffic under the traffic ordinances of this City or under state law, or to guide or warn traffic.
9.0402 Specifications for
All traffic-control signs, signals, and devices shall conform to the specifications approved by the director of the North Dakota Department of Transportation pursuant to NDCC Section 39-13-06. All signs and signals required hereunder for a particular purpose shall so far as practicable be uniform as to type and location throughout the City. All traffic-control devices so erected and not inconsistent with the provisions of state law or this article shall be official traffic-control devices.
9.0403 Obedience to Traffic-Control Devices
The provisions of NDCC Section 39-10-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter.
2. No provision of this chapter for which traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a state statute does not state that devices are required, such statute shall be effective even though no devices are erected or in place.
3. Whenever official traffic-control devices are placed in position approximately conforming to the requirements of state law, such devices shall be presumed to have been so placed by the official act
119
or direction of lawful authority unless the contrary shall be established by competent evidence.
9.0404 Unauthorized Signs
The provisions of NDCC Section 39-10-07.2 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person shall place, maintain, or display upon or in view of any highway, any unauthorized sign, signal, marking, or device which purports to be or is an imitation of or resembles an official traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of an official traffic-control sign, marking, or device.
2. No person shall place or maintain nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising.
3. This section shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs.
4. Every such prohibited sign, signal, or marking is hereby declared to be a public nuisance and the City is hereby empowered to remove the same or cause it to be removed without notice when located on highway or roadway right of way.
5. No person shall place, maintain, or display upon or within the right of way of any highway any sign, post, pole, mailbox, or signal which has a red lamp or red reflector visible to traffic. The provisions of this subsection shall not apply to official traffic devices, lamps, or reflectors on motor vehicles or bicycles, or railroad signals or signs.
9.0405 Interference with Official Traffic Control Device or Sign
The provisions of NDCC Section 39-10-07.3 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person shall, without lawful authority, attempt to or in fact alter, deface, injure, knock down, or remove any official traffic-control device or any railroad sign or signal or any inscription, shield, or insignia thereon, or any other part thereof.
120
9.0406 Designation of Walks, Lanes, etc.
The city engineer or any person authorized by the City Council shall:
1. Designate and maintain, by appropriate devices, marks or lines upon the surface of the roadway, crosswalks at intersections where there is particular danger to pedestrians crossing the roadway, and at such other places as directed by the City Council.
2. Establish safety zones of such kind and character and at such places as may be deemed necessary for the protection of pedestrians as determined by the City Council.
3. Mark traffic lanes upon the roadway of any street or highway where a regular alignment of traffic is necessary. Where such traffic lanes have been marked, it shall be unlawful for the operator of any vehicle to fail or refuse to keep such vehicle within the boundaries of any such lane except when lawfully passing another vehicle or preparatory to making a lawful turning movement or performing other lawful traffic movements.
ARTICLE 5 – Speed Regulations and Care Required
9.0501 Basic Rules – Penalty for Violation
The provisions of NDCC Section 39-09-01 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. Any person who shall drive a vehicle upon a highway or private or public property open to the public for the operation or motor vehicles without heed to the requirements or restrictions of this section shall have committed careless driving, and shall be assessed a fee of Thirty and No/100 Dollars ($30.00).
Any person who, by reason of careless driving as herein defined, causes and inflicts injury upon the person of an operator of snow removal equipment engaged in snow removal operations or causes damage in excess of one
121
thousand dollars to snow removal equipment engaged in snow removal is guilty of an infraction.
As used in this section, “snow removal equipment” means a vehicle that is operated by a person employed by or on behalf of an authority in charge of the maintenance of the highway to perform winter maintenance snow and ice removal, including plowing, hauling away, salting, and sanding.
9.0502 Speed Limitations
The provisions of NDCC Section 39-09-02 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Subject to the provisions of 9.0501 and except in those instances where a lower speed is specified in this chapter, it presumably shall be lawful for the driver of a vehicle to drive the same at a speed not exceeding:
a. Twenty (20) miles an hour when passing a school during school recess or while children are going to or leaving school during opening or closing hours;
b. Twenty (20) miles an hour when approaching within fifty (50) feet and in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view is deemed to be obstructed when at any time during the last fifty (50) feet of the driver’s approach to such intersection, the driver does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred (200) feet from such intersection;
c. Twenty (20) miles an hour when the driver’s view of the highway ahead is obstructed within a distance of one hundred (100) feet;
d. Twenty-five (25) miles an hour on any highway in a business district or in a residence district or in a public park, unless a different speed limit is designated and posted by local authorities; and
e. Twenty-five (25) miles an hour under other circumstances, unless otherwise permitted, restricted, or required by conditions.
2. The Director of the North Dakota Department of Transportation may designate and post special areas of state highways where lower speed limits shall apply.
122
3. Except as provided by law, it is unlawful for any person to drive a vehicle upon a highway at a speed that is unsafe or at a speed exceeding the speed limit prescribed by law or established pursuant to law.
4. In charging a violation of the provisions of this section, the complaint must specify the speed at which the defendant is alleged to have driven and the speed which this section prescribes shall be prima facie lawful at the time and place of the alleged offense.
9.0503 When Local Authorities May or Shall Alter Maximum Speed – Limits – Signs Posted
The provisions of NDCC Section 39-09-03 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Whenever the City, on the basis of an engineering and traffic investigation, determines that the maximum speed permitted under this title is greater or less than what is reasonable and safe under the conditions found to exist upon a highway or part of a highway, the City may determine and declare a reasonable and safe maximum limit thereon which:
a. Decreases the limit at intersections;
b. Increases the limit within an urban district but not to more than thirty (30) miles per hour; or
c. Decreases the limit outside an urban district.
2. The City shall determine the proper maximum speed for arterial streets and shall declare a reasonable and safe maximum limit thereon which may be greater or less than the minimum speed permitted under this chapter for an urban district.
3. Any alteration of speed limits on state highways or extensions thereof in the municipality shall not be effective until such alteration has been approved by the Director of the North Dakota Department of Transportation.
123
9.0504 Speed Limitations Inapplicable to Whom – Liability of Exempt Driver for Reckless Driving
The provisions of NDCC Section 39-09-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The speed limitations provided for in this article shall not apply to Class A authorized emergency vehicles. The exceptions provided for in this section shall not protect the driver of any such vehicle from the consequences of the reckless disregard of the safety of others.
9.0505 Regulations of Speed by Traffic Signals
The City traffic engineer or authorized person may regulate the timing of traffic signals so as to permit the movement of traffic in an orderly and safe manner at speeds slightly at variance from the speeds otherwise applicable within the district or at intersections and shall erect appropriate signs giving notice thereof.
9.0506 Exhibition Driving and Drag Racing – Definitions – Penalty
The provisions of NDCC Section 39-08-03.1 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person shall engage in exhibition driving of any vehicle on a highway, street, alley, sidewalk, or any public or private parking lot or area, nor shall any person engage in a race, a speed competition, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration. Any person who violates this section by engaging in an act defined by subdivision b of subsection 2 must be assessed a fee of fifty dollars. Any person who violates this section by engaging in an act defined by subdivision a or c of subsection 2 must be assessed a fee of one hundred dollars.
2. As used in this section:
a. “Drag race” means the operation of two or more vehicles from a point side-by-side by accelerating rapidly in a competitive attempt to cause one vehicle to out distance the other; or the operation of one or more vehicles over a common selected course from the same point to the same point for the purpose of comparing the relative speed or powers of acceleration of such vehicle or vehicles within a certain distance or time limit.
124
b. “Exhibition driving” means driving a vehicle in a manner which disturbs the peace by creating or causing unnecessary engine noise, tire squeal, skid, or slide upon acceleration or braking; or driving and executing or attempting one or a series of unnecessarily abrupt turns.
c. “Race” means the use of one or more vehicles in an attempt to outgain, outdistance, or to arrive at a given distance ahead of another vehicle or vehicles; or the use of one or more vehicles to willfully prevent another vehicle from passing the racing vehicle or vehicles, or to test the physical stamina or endurance of the persons driving the vehicles over a long distance driving route.
3. Nothing in this section shall be construed as prohibiting drag racing, exhibition driving, or similar events when carried out in an organized manner on a track or other privately owned area specifically set aside and used solely for such purposes by drivers of motor vehicles, including snowmobiles.
9.0507 Radar Evidence in Speed Violations
The provisions of NDCC Section 39-03-15 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The speed of any motor vehicle may be checked by the use of radio microwaves or other electrical device. The results of such checks shall be accepted as prima facie evidence of the speed of such motor vehicle in any court or legal proceedings where the speed of the motor vehicle is at issue. The driver of any such motor vehicle may be arrested without a warrant under this section, provided the arresting officer is in uniform or displays the officer’s badge of authority; provided that such officer has observed the record of the device, or has received a radio message from the officer who observed the speed of the motor vehicle recorded by the radio microwaves or other electrical device.
9.0508 Care Required in Operating Vehicle
The provisions of NDCC Section 39-09-01.1 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Any person driving a vehicle upon a highway shall drive the vehicle in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances. No person may drive any vehicle upon a highway in a manner to endanger the life,
125
limb, or property of any person. The fee for a violation of this ordinance shall be not less than $10 nor more than $30.
ARTICLE 6 – Turning Movements
9.0601 Limitations on Turning Around
The provisions of NDCC Section 39-10-36 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movement can be made safely and without interfering with other traffic.
2. No vehicle shall be turned so as to proceed in the opposite direction upon any curve, or upon the approach to or near the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred (500) feet.
9.0602 Signals by Hand and Arm or Signal Lamps
The provisions of NDCC Section 39-10-39 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Any stop or turn signal when required herein must be given either by means of the hand and arm or by signal lamps, except as otherwise provided in subsection 2.
2. Any motor vehicle in use on a highway must be equipped with, and required signals must be given by, signal lamps when the distance from the center of the top of the steering post to the left outside limit of the body, cab or load of such motor vehicle exceeds twenty-four (24) inches (60.96 centimeters), or when the distance from the center of the top of the steering post to the rear limit of the body or load thereof exceeds fourteen (14) feet (4.27 meters). The latter measurement shall apply to any single vehicle and to any combination of vehicles.
ARTICLE 7 – Special Stops
9.0701 Signs
All traffic control devices shall conform to state specifications.
9.0702 Stop Signs and Yield Signs
126
The provisions of NDCC Sections 39-10-24 and 39-10-44 shall be and are hereby incorporated by reference in this ordinance.
1. Preferential right-of-way may be indicated by stop signs or yield signs.
2. Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, or if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersection roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.
3. The driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for the existing conditions and, if required for safety to stop, shall stop at a clearly marked stop sign, or, if none, before entering the crosswalk on the near side of the intersection or, if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersection roadway before entering it. After slowing or stopping, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute and immediate hazard during the time such driver is moving across or within the intersection or junction of roadways. Provided, however, that if the driver is involved in a collision with a vehicle in the intersection or junction of roadways after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right-of-way.
4. Every stop sign and every yield sign shall be erected as near as practicable to the nearest line of the crosswalk on the near side of the intersection or, if there is no crosswalk, then as near as practicable to the nearest line of the intersecting roadway.
5. Except when directed to proceed by a police officer or traffic control sign, every driver of a vehicle approaching an intersection indicated by a stop sign shall stop before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, shall stop at a clearly marked stop line, but if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersecting roadway.
127
6. The driver of a vehicle approaching a yield sign if required for safety to stop shall stop before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, at a clearly marked stop line, but if none, then at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway.
9.0703 Emerging from Alley or Driveway
The driver of a vehicle emerging from an alley, driveway, private road or building within a business or residential district shall stop such vehicle immediately prior to driving on to the sidewalk or on to the sidewalk area extending across such alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered when the driver has a view of approaching traffic thereon. The driver shall yield the right-of-way to any pedestrian as may be necessary to avoid collision and upon entering the roadway shall yield the right-of-way to all vehicles approaching on said roadway. (Source: NDCC Section 39-10-45)
ARTICLE 8 – Operators
9.0801 Operators – Who Prohibited
The driving of motor vehicles, including automobiles, motor scooters, motor cycles, taxi cabs, trucks, or delivery trucks within the city limits of this City by any person who is not legally licensed to operate such vehicles under the laws of the State of North Dakota or by any person during the period his or her license is suspended, is prohibited.
ARTICLE 9 – Miscellaneous Driving Rules
9.0901 When Traffic Obstructed
No driver shall enter an intersection or a marked crosswalk unless there is sufficient space on the other side of the intersection or crosswalk to accommodate the vehicle the driver is operating without obstructing the passage of other vehicles or pedestrians, notwithstanding any traffic control signal indication to proceed. (Source: NDCC Section 39-10-68)
9.0902 Driving Through Funeral or Other Procession
No driver of a vehicle shall drive between the vehicles comprising a funeral or other authorized procession while they are in motion and when such vehicles are conspicuously designated as required in this ordinance, except when authorized to do so by a law enforcement officer or when such vehicle is an
128
emergency vehicle giving an audible or visible signal. (Source: NDCC Section 39-10-72 (4))
9.0903 Drivers in a Procession
Each driver in a funeral or other procession shall follow the vehicle ahead as close as is practicable and safe. (Source: NDCC Section 39-10-72 (3))
9.0904 Funeral Processions to be Identified
A funeral procession composed of a procession of vehicles shall be identified as such by headlights burning in daylight hours on all vehicles in the procession. (Source: NDCC Section 39-10-72 (3))
9.0905 When Permits Required for Parades and Processions
No funeral, procession or parade containing two hundred (200) or more persons or fifty (50) or more vehicles except the Armed Forces of the United States, the military forces of this state and the forces of the police and fire departments, shall occupy, march or proceed along any street except in accordance with a permit issued by the Chief of Police and such other regulations as are set forth herein which may apply.
9.0906 Drive on Right Side of Roadway – Exceptions
The provisions of NDCC Section 39-10-08 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
a. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
b. When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
c. Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or
2. Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then
129
existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn in an intersection or into a private road or driveway.
3. Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle shall be driven to the left of the center line of the roadway, except when authorized by official traffic-control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under subdivision b of subsection 1 hereof. However, this subsection shall not be construed as prohibiting the crossing of the center line in making a left turn into or from an alley, private road, or driveway.
9.0907 Passing Vehicles Proceeding in Opposite Direction
The provisions of NDCC Section 39-10-09 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the roadway as nearly as possible.
9.0908 When Overtaking on the Right is Permitted
The provisions of NDCC Section 39-10-12 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:
a. When the vehicle overtaken is making or about to make a left turn; or
b. Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle.
2. The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. Such movement may not be made by driving off the roadway.
130
9.0909 Limitations on Overtaking on the Left
The provisions of NDCC Section 39-10-13 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No vehicle may be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to an authorized lane of travel as soon as practicable, and in the event the passing movement involves the use of a lane authorized for vehicles approaching from the opposite direction, before coming within two hundred feet of any approaching vehicle.
9.0910 Further Limitations on Driving on Left of Center of Roadway
The provisions of NDCC Section 39-10-14 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No vehicle shall be driven to the left side of the roadway under the following conditions:
a. When approaching or upon the crest of a grade or a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;
b. When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing; or
c. When the view is obstructed upon approaching within one hundred (100) feet of any bridge, viaduct or tunnel.
2. The foregoing limitations shall not apply upon a one-way roadway, nor under the conditions described in 9.0906 nor to the driver of a vehicle turning left into or from an alley, private road or driveway.
9.0911 No-Passing Zones
The provisions of NDCC Section 39-10-15 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
131
1. The Director of the North Dakota Department of Transportation and local authorities are hereby authorized to determine those portions of any highway under their respective jurisdiction where overtaking and passing or driving on the left side of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person, every driver of a vehicle shall obey the directions thereof.
2. Where signs or markings are in place to define a no-passing zone as set forth in subsection 1, no driver shall at any time drive on the left side of the roadway with such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.
3. This section does not apply under the conditions described in Section 9.0906 nor to the driver of a vehicle turning left into or from an alley, private road or driveway.
9.0912 Following Too Closely
The provisions of NDCC Section 39-10-18 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
2. The driver of any truck or motor vehicle drawing another vehicle when traveling upon a roadway outside of a business or residence district and which is following another truck or motor vehicle drawing another vehicle shall, whenever conditions permit leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this does not prevent a truck or motor vehicle drawing another vehicle from overtaking and passing any vehicle or combination of vehicles.
3. Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade whether or not towing other vehicles must be so operated as to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This provision does not apply to funeral processions.
132
9.0913 Vehicle Entering Roadway
The provisions of NDCC Section 39-10-25 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.
9.0914 Vehicle Approaching or Entering Intersection
The provisions of NDCC Section 39-10-22 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. When two vehicles approach or enter an intersection not controlled by an official traffic-control device from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. If the intersection is T-shaped and not controlled by an official traffic-control device, the driver of the vehicle on the terminating street shall yield to the vehicle on the continuing street or highway.
2. The right-of-way rule declared in this section is modified at through highways and otherwise as stated in this chapter.
9.0915 Overtaking and Passing Schoolbus
The provisions of NDCC Section 39-10-46 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of a vehicle meeting or overtaking from either direction any schoolbus stopped on the highway shall stop the vehicle before reaching the schoolbus when there is in operation on the schoolbus the flashing red lights or the stop sign on the control arm specified in NDCC Section 39-21-18, and the driver may not proceed until the schoolbus resumes motion, the driver is signaled by the schoolbus driver to proceed, or the flashing red lights and the stop sign on the control arm are no longer actuated.
2. Every schoolbus shall bear upon the front and rear thereof plainly visible signs containing the word "SCHOOLBUS" in letters not less than eight (8) inches (20.32 centimeters) in height.
133
3. The operator of a schoolbus equipped with amber caution lights may activate those lights at a distance of not less than three hundred (300) feet (91.44 meters) nor more than five hundred (500) feet (152.4 meters) from the point where school children are to be received or discharged from the bus.
4. Every schoolbus must be equipped with a stop sign on a control arm and red visual signals meeting the requirements of NDCC Section 39-21-18, which may only be actuated by the driver of the schoolbus whenever the vehicle is stopped on the highway to receive or discharge school children.
5. The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a schoolbus which is on a different roadway or when upon a controlled-access highway and the schoolbus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.
9.0916 Unattended Motor Vehicle
The provisions of NDCC Section 39-10-51 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person driving or in charge of a motor vehicle may permit it to stand unattended without first stopping the engine, effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway.
9.0917 Limitations on Backing
The provisions of NDCC Section 39-10-52 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance. The driver of a vehicle may not back the same unless such movement can be made with safety and without interfering with other traffic.
9.0918 Obstruction to Driver's View or Driving Mechanism
The provisions of NDCC Section 39-10-54 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person may drive a vehicle when it is so loaded, or when there are in the front seat such a number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or
134
as to interfere with the driver's control over the driving mechanism of the vehicle.
2. No passenger in a vehicle may ride in such position as to interfere with the driver's view ahead or to the sides, or to interfere with his control over the driving mechanism of the vehicle.
9.0919 Following Fire Apparatus Prohibited
The provisions of NDCC Section 39-10-57 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of any vehicle other than one on official business may not follow any fire apparatus traveling in response to a fire alarm closer than five hundred (500) feet or stop such vehicle within five hundred (500) feet of any fire apparatus stopped in answer to a fire alarm.
9.0920 Crossing Fire Hose
The provisions of NDCC Section 39-10-58 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No vehicle may be driven over any unprotected hose of a fire department when laid down on any street, private road or driveway to be used at any fire or alarm of fire, without the consent of the fire department official in command.
9.0921 Garbage, Glass, Etc. on Highways Prohibited
The provisions of NDCC Section 39-10-59 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person may throw or deposit upon any highway any glass bottle, glass, nails, tacks, wire, cans, rubbish, or any other substance likely to injure any person, animal or vehicle.
2. Any person who drops, or permits to be dropped or thrown, upon any highway any destructive or injurious material shall immediately remove the same or cause it to be removed.
3. Any person removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from such vehicle.
135
9.0922 Permitting Unauthorized Minor to Drive
No person may cause or knowingly permit the person’s child or ward under the age of eighteen (18) years to drive a motor vehicle upon any highway when such minor is not authorized under the laws of this state. (Source: NDCC Section 39-06-44)
9.0923 Permitting Unauthorized Person to Drive
No person may authorize or knowingly permit a motor vehicle owned by the person or under the person’s control to be driven upon any highway by any person who is not authorized under the laws of this state. (Source: NDCC Section 39-06-45)
ARTICLE 10 - Pedestrians' Rights and Duties
9.1001 Pedestrian Obedience to Traffic Control Devices and Traffic Regulations
The provisions of NDCC Section 39-10-27 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. A pedestrian shall obey the instructions of any official traffic control device specially applicable to him, unless otherwise directed by a police officer.
2. Pedestrians are subject to traffic-control and pedestrian-control signals as provided for in 9.0403.
9.1002 Pedestrians' Right-of-way in Crosswalks
The provisions of NDCC Section 39-10-28 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. When traffic-control signals are not in place or not in operation, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
2. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard.
136
3. Subsection 1 of this section does not apply under the conditions stated in subsection 2 of Section 9.1003.
4. Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the highway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.
9.1003 Crossing at other than Crosswalks
The provisions of NDCC Section 39-10-29 relating to the following circumstances and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
2. Between adjacent intersections at which traffic-control devices are in operation pedestrians may not cross at any place except in a marked crosswalk.
9.1004 Drivers to Exercise Due Care
The provisions of NDCC Section 39-10-30 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused, incapacitated, or intoxicated person.
9.1005 Pedestrians to Use Right Half of Crosswalks
The provisions of NDCC Section 39-10-32 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Pedestrians shall move, whenever practicable, upon the right half of crosswalks.
137
9.1006 Pedestrians on Roadways
The provisions of NDCC Section 39-10-33 relating to the following circumstances and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.
2. Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.
3. Except as otherwise provided for in this chapter, any pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway.
9.1007 Pedestrians' Right-of-Way on Sidewalks
The provisions of NDCC Section 39-10-33.1 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of a vehicle shall yield the right-of-way to any pedestrian on a sidewalk.
9.1008 Pedestrians Yield to Authorized Emergency Vehicles
The provisions of NDCC Section 39-10-33.2 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon the immediate approach of an authorized emergency vehicle making use of an audible signal by bell, siren, or exhaust whistle and displaying a visible flashing revolving, or rotating blue, white or red light, every pedestrian shall yield the right-of-way to the authorized emergency vehicle.
2. This section does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway nor from the duty to exercise due care to avoid colliding with any pedestrian.
138
9.1009 Blind Pedestrians’ Right-of-way
The provisions of NDCC Section 39-10-33.3 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of a vehicle shall yield the right-of-way to any blind pedestrian carrying a clearly visible white cane or accompanied by a guide dog.
ARTICLE 11 – Regulations for Motorcycles
9.1101 Traffic Laws Apply to Persons Operating Motorcycles or Motorized Bicycles
The provisions of NDCC Section 39-10.2-01 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
9.1102 Riding on Motorcycles
The provisions of NDCC Section 39-10.2-02 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such operator may not carry any other person nor may any other person ride on a motorcycle unless such motorcycle is designed to carry more than one person, in which event a passenger may ride upon the permanent and regular seat if designed for two persons, or upon another seat firmly attached to the motorcycle at the rear or side of the operator.
2. A person shall ride upon a motorcycle only while sitting astride the seat, facing forward, with one leg on each side of the motorcycle.
3. No person may operate a motorcycle while carrying any package, bundle or other article which prevents the person from keeping both hands on the handlebars.
4. No operator may carry any person, nor may any person ride in a position that will interfere with the operation or control of the motorcycle or the view of the operator.
139
9.1103 Operating Motorcycles on Roadways Laned for Traffic
The provisions of NDCC Section 39-10.2-03 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. All motorcycles are entitled to the full use of a lane and no motor vehicle may be driven in such a manner as to deprive any motorcycle of the full use of a lane.
2. The operator of a motorcycle may not overtake and pass in the same lane occupied by the vehicle being overtaken.
3. No person may operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles.
4. Motorcycles may not be operated more than two abreast in a single lane.
5. Subsections 2 and 3 do not apply to police officers in the performance of their official duties.
9.1104 Clinging to Other Vehicles
The provisions of NDCC Section 39-10.2-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person riding upon a motorcycle may attach the person’s self or the motorcycle to any other vehicle on a roadway.
9.1105 Footrests
The provisions of NDCC Section 39-10.2-05 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Any motorcycle carrying a passenger, other than in a sidecar or enclosed cab, must be equipped with footrests for such passengers.
9.1106 Equipment for Motorcycle Riders
The provisions of NDCC Section 39-10.2-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
140
1. No person under the age of eighteen years may operate or ride upon a motorcycle unless protective headgear, which complies with standards established by the North Dakota Department of Transportation, is being worn on the head of the operator and rider, except when participating in a lawful parade. If the operator of a motorcycle is required to wear protective headgear, any passenger must also wear protective headgear regardless of the age of the passenger.
2. This section does not apply to persons riding within an enclosed cab or on a golf cart.
3. No person may operate a motorcycle if a person under the age of eighteen (18) years is a passenger upon that motorcycle and is not wearing protective headgear as provided in subsection 1.
9.1107 Other Applicable Laws
The provisions of NDCC Section 39-10.2-07 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
All of the provisions of this chapter pertaining to the disposition of traffic offenses apply to this article.
ARTICLE 12 – Regulations for Bicycles
9.1201 Effect of Regulations
1. It is a violation of this ordinance for any person to do any act forbidden or fail to perform any act required in this article. Any person who violates any of the provisions of this article may be assessed a fee not to exceed five dollars ($5.00).
2. The parent of any child and the guardian of any ward may not authorize or knowingly permit any such child or ward to violate any of the provisions of this ordinance.
3. These regulations applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles subject to those exceptions stated herein. (Source: NDCC Section 39-10.1-01)
141
9.1202 Traffic Ordinances Apply to Persons Riding Bicycles
Every person riding a bicycle upon a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this ordinance, except as to special regulations in this article and except as to those provisions of this ordinance which by their nature can have no application. (Source: NDCC Section 39-10.1-02)
9.1203 Riding on Sidewalks
1. The Chief of Police or authorized person may erect signs on any sidewalk or roadway prohibiting the riding of bicycles thereon by any person and when such signs are in place no person may disobey the same.
2. Whenever any person is riding a bicycle upon a sidewalk, such person shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.
9.1204 Clinging to Vehicles
The provisions of NDCC Section 39-10.4-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person riding upon any bicycle, coaster, roller skates, sled or toy vehicle may attach the same or the person’s self to any vehicle upon a roadway, except a sled being pulled by a snowmobile.
9.1205 Lamps and other Equipment on Bicycles
The provisions of NDCC Section 39-10.1-07 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance. Every bicycle must be equipped with a brake which will enable the operator to make the braked wheels skid on dry, level, clean pavement.
ARTICLE 13 – Angle Parking
9.1301 Angle Parking
The city engineer or other person authorized by the City Council may mark or sign streets upon which angle parking will be permitted (other than federal aid or state highways). Upon those streets which have been signed or marked for angle parking, no person may park or stand a vehicle other than at the angle to the curb or edge of the roadway indicated by such signs or markings.
9.1302 Close to Curb
142
No person may stand or park a vehicle in a street other than on the roadway and parallel with the edge of the roadway headed in the direction of lawful traffic movement and with the right hand wheels of the vehicle within eighteen (18) inches of the curb or edge of the roadway except as otherwise provided in this article.
9.1303 Method of Parking - Penalty
A violation of the provisions of this article in respect to the method of parking is punishable by a fine of not to exceed twenty-five dollars ($25.00).
ARTICLE 14 - Stopping, Standing or Parking Prohibited in Specific Places
9.1401 Parking Prohibited - All Times
When signs are erected giving notice thereof, it shall be unlawful for any person, firm or corporation to park or leave standing either attended or unattended, any motor vehicle in or upon the streets or alleys of the City.
9.1402 Stopping, Standing or Parking Outside of Business or Residence Districts
The provisions of NDCC Section 39-10-47 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway of not less than twelve (12) feet opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
2. Subsection 1 and Sections 9.1404 and 9.1405 shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.
9.1403 Officers Authorized to Remove Illegally Stopped Vehicles
143
The provisions of NDCC Section 39-10-48 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Whenever any police officer finds a vehicle standing upon a highway in violation of any of the provisions of Section 9.1402, such officer is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the paved or main-traveled part of such highway.
2. Whenever any police officer finds a vehicle unattended upon any highway, bridge or causeway, or in any tunnel where such vehicle constitute an obstruction to traffic, such officer is hereby authorized to provide for the removal of such vehicle to the nearest garage or other place of safety.
3. Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:
a. A report has been made that such vehicle has been stolen or taken without consent of its owner;
b. The person or persons in charge of such vehicle are unable to provide for its custody or removal; or
c. When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay.
9.1404 Stopping, Standing or Parking Prohibited in Specified Places
The provisions of NDCC Section 39-10-49 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person may stop, stand or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic-control device, in any of the following places:
1. On a sidewalk;
2. In front of a public or private driveway;
144
3. Within an intersection;
4. Within ten (10) feet of a fire hydrant;
5. On a crosswalk;
6. Within ten (10) feet of a crosswalk at an intersection;
7. Within fifteen (15) feet upon the approach to any flashing beacon, stop sign or traffic-control signal located at the side of a roadway;
8. Between a safety zone and the adjacent curb or within fifteen (15) feet of points on the curb immediately opposite the ends of a safety zone, unless the North Dakota Department of Transportation or the City indicates a different length by signs or markings;
9. Within twenty (20) feet of the driveway entrance to any fire station and on the side of a street opposite the entrance to any fire station within seventy-five (75) feet of said entrance when properly signposted;
10. Alongside or opposite any street excavation or obstruction when stopping, standing or parking would obstruct traffic;
11. On the roadway side of any vehicle stopped or parked at the edge or curb of a street;
12. Upon any bridge or other elevated structure upon a highway or within a highway tunnel; or
13. At any place where official signs prohibit stopping.
No person shall move a vehicle not lawfully under his control into any such prohibited area or away from a curb such distance as is unlawful.
9.1405 Additional Parking Regulations
The provisions of NDCC Section 39-10-50 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway must be so stopped or parked with the right-hand wheels of such vehicle parallel to and within twelve (12) inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder.
145
2. Except where otherwise provided by ordinance, every vehicle stopped or parked upon a one-way roadway must be so stopped or parked parallel to the curb or edge of the roadway, in the direction of authorized traffic movement, with its right-hand wheels within twelve (12) inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder, or with its left-hand wheels within twelve (12) inches of the left-hand curb or as close as practicable to the left edge of the left-hand shoulder.
3. The City may permit angle parking on any roadway, except that angle parking is not permitted on any federal-aid or state highway without first obtaining the written authorization of the director of the North Dakota Department of Transportation.
9.1406 Stopping - Parking - Congested - Hazardous Places
The city engineer or other person designated by the City Council is hereby authorized to determine and designate by proper signs, places in which the stopping, standing or parking of vehicles would create an especially hazardous condition or would cause unusual delay to traffic.
When official signs are erected at hazardous or congested places as authorized herein, no person may stop, stand or park a vehicle in any such designated place.
9.1407 Stopping - Parking - In Alleys
No person may park a vehicle within an alley, nor shall any person stop a commercial vehicle so as to leave available less than twelve (12) feet of the width thereof for free movement of vehicular traffic, nor shall any person stop in such a position as to block the driveway entrance to any abutting property.
9.1408 Parking Adjacent to Schools
1. The city traffic engineer or authorized person may erect signs indicating no parking upon either or both sides of any street adjacent to any school property when such parking would, in his opinion, interfere with traffic or create a hazardous situation.
2. When official signs are erected indicating no parking upon either side of a street adjacent to any school property as authorized herein, no person may park a vehicle in any such designated place.
9.1409 Stopping - Parking - Over 48 Hours
146
It shall be unlawful for anyone to park or leave standing on any public street or highway in the City any vehicle for a period longer than forty-eight (48) hours consecutively, provided this section shall not include any area where a shorter time is provided for parking.
9.1410 Parking Privileges for Mobility-Impaired - Certificate - Revocation
The provisions of NDCC Section 39-01-15 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Any mobility-impaired person who displays prominently upon an automobile parked by that person or under that person’s direction and for that person’s use, a distinguishing certificate or insignia for mobility-impaired persons issued by the North Dakota Department of Transportation shall be entitled to courtesy in the parking of the automobile. Provided, however, that the City may prohibit parking on any street or highway for the purpose of creating a fire lane, or to provide for the accommodation of heavy traffic during morning and afternoon rush hours, and the privileges extended to such impaired persons do not apply on streets or highways where and during such times as parking is prohibited.
2. A mobility-impaired person as used in this section includes any person who uses portable oxygen; requires personal assistance or the use of crutches, a wheelchair, or a walker to walk two hundred feet without rest; is restricted by cardiac, pulmonary or vascular disease from walking two hundred feet without rest; has a forced expiratory volume of less than one liter for one second or an arterial oxygen tension of less than sixty millimeters to mercury on room air while at rest and is classified III or IV by standards for cardiac disease set by the American Heart Association; or has an orthopedic, neurological or other medical condition that makes it impossible for the person to walk two hundred feet without assistance or rest.
3. If a law enforcement officer finds that a mobility-impaired certificate or insignia is being improperly used, the officer may report to the director of the North Dakota Department of Transportation. Any person who is not mobility-impaired and who exercises the privileges granted a mobility-impaired person under subsection 1 shall be guilty of an infraction.
4. Whenever any public or private entity designates parking spaces for use by motor vehicles operated by mobility-impaired persons, those reserved spaces must be indicated by blue paint on the curb or edge of the paved portion of the street or parking lot adjacent to the space.
147
In addition to blue paint, the space reserved must be indicated by an official sign approved by the director of the North Dakota Department of Transportation. The City may enforce the provisions of this subsection in any parking lot or parking facility that is generally open to the public, whether publicly or privately owned.
5. A person may not stop, stand or park any vehicle in any designated parking space which is reserved for the mobility-impaired unless the vehicle displays a mobility-impaired identification certificate or insignia issued by the director of the North Dakota Department of Transportation. For a violation of this subsection, there will be a fee in the amount of one hundred dollars ($100.00).
ARTICLE 15 - Reserved Parking Areas
9.1501 Reserved Parking Areas
No person, firm or corporation shall, when signs are erected giving notice thereof, park or leave standing, either attended or unattended, any motor vehicle on street areas which are reserved for the following temporary uses: loading and unloading, bus parking, guest parking, taxi parking, emergency parking, no parking, police or fire use.
The Chief of Police may establish from time to time areas for loading and unloading, bus parking, guest parking, taxi parking, emergency parking, no parking or police and fire use on such public streets in such places and in such number as the chief shall determine or as the City Council may specifically designate to be of greatest benefit and convenience to the public. These areas shall be designated by appropriate signs.
ARTICLE 16 - Time Limit Parking Zones
9.1601 Time Limit Parking Zones
When signs are erected giving notice thereof, no person, firm or corporation shall park or leave standing, either attended or unattended any motor vehicle for more than the amount of time posted.
The city engineer or authorized person may establish time parking zones from time to time in such places as they determine, or as the City Council shall specifically designate, to promote the greatest benefit and convenience to the public and the best use of the street areas.
ARTICLE 17 - Equipment of Vehicles
148
9.1701 Windshield - Must be Unobstructed and Equipped with Wipers - Tinted Windows
1. Every motor vehicle shall be equipped with a windshield. No person shall drive any motor vehicle with any sign, poster or other nontransparent material upon the front windshield, side wings or side or rear windows which obstructs the driver’s clear view of the highway or any intersection highway.
2. The windshield on every motor vehicle must be equipped with a device for cleaning rain, snow or other moisture from the windshield, which shall be so constructed as to be controlled or operated by the driver of the vehicle.
3. Every windshield wiper upon a motor vehicle shall be maintained in good working order.
4. A person may not operate a motor vehicle with any object or any material displayed, affixed or applied on the front windshield or on any side window where that material alters the color or reduces the light transmittance, or reduces the clear and unobstructed view through the windshield or window. This subsection does not apply to windows behind the driver or to tinted windows or windshields in compliance with the Federal Motor Vehicle Safety Standards.
9.1702 Child Restraint Devices - Evidence
1. If a child, under four years of age, is present in any motor vehicle, that motor vehicle must be equipped with at least one (1) child restraint system for each such child. The child restraint system must meet the standards adopted by the United States Department of Transportation for those systems (49 CFR 571.213). While the motor vehicle is in motion, each such child must be properly secured in the child restraint system in accordance with the manufacturer’s instructions. If a child who is at least four and at most seventeen years of age is present in a motor vehicle, unless properly secured in an approved child restraint system, the child must be buckled in a seatbelt whenever the car is moving. Use of child restraint systems and seatbelts is not required in motor vehicles that were not equipped with seatbelts when manufactured.
2. Violation of this ordinance is not, in itself, evidence of negligence. The fact of a violation of this section is not admissible in any proceeding other than one charging the violation. (Source: NDCC Section 39-21-41.2)
149
9.1703 Use of Safety Belts - Enforcement
Subject to the limitations of this section and NDCC Section 39-21-41.5, a driver may not operate upon a highway a motor vehicle designed for carrying fewer than eleven passengers, which was originally manufactured with safety belts unless each front seat occupant is wearing a properly adjusted and fastened safety belt. This section does not apply to a child in a child restraint or seatbelt; to drivers of implements of husbandry; to operators of farm vehicles; to rural mail carriers while on duty delivering mail; to an occupant with a medical or physically disabling condition that prevents appropriate restraint in a safety belt, if a qualified physician states in a signed writing the nature of the condition and the reason restraint is inappropriate; or when all front seat safety belts are in use by other occupants. A physician who, in good faith, provides a statement that restraint would be inappropriate is not subject to civil liability.
A peace officer may not issue a citation for a violation of this section unless the officer lawfully stopped or detained the driver of the motor vehicle for another violation. (Source: NDCC Sections 39-21-41.4 and 41.5)
9.1704 Drawbar or Connection Between Vehicles - Precautions Required
The drawbar or other connection between any two vehicles, one of which is towing or drawing the other on a highway, shall be of such design, strength and construction so as to prevent the unintentional uncoupling of the vehicles. (Source: NDCC Section 39-21-44.2)
9.1705 Modification of Motor Vehicle
Except as otherwise provided in this ordinance, a person may not operate upon a public highway a motor vehicle of a type required to be registered under the laws of this state with a weight of seven thousand (7,000) pounds (3175.14 kilograms) or less with alterations or changes from the manufacturer’s original design of the suspension, steering or braking system of the motor vehicle. The weight must be computed on the basis of the unmodified and unloaded weight of the motor vehicle, and without regard to any ballast that may be placed in the vehicle. As to bumpers, motor vehicle height and permitted modifications, the following requirements also apply:
1. The motor vehicle must be equipped with front and rear bumpers.
2. The maximum body height permitted for a motor vehicle is forty-two (42) inches (106.68 centimeters). Measurement of body height is made from a level ground surface to the floor of the cargo area.
3. The maximum bumper height permitted is twenty-seven (27) inches (68.58 centimeters). Measurement of bumper height is made from a
150
level ground surface to the highest point on the bottom of the bumper.
4. The vehicle may be modified in accordance with the following:
a. Any modifying equipment must meet specialty equipment marketing association standards.
b. If tires placed on a motor vehicle have a diameter greater than that of the tires on the motor vehicle as manufactured, those tires must comply with Department of Transportation requirements.
c. The maximum outside diameter permitted for tires if forty-four (44) inches (111.76 centimeters).
d. A horizontal drop bumper may be used to comply with the bumper height requirement of subsection 3. The horizontal bumper must:
i. Be at least three (3) inches (7.62 centimeters) in vertical width;
ii. Extend the entire horizontal body width; and
iii. Be horizontal, load bearing and attached to the vehicle frame to effectively transfer impact when engaged.
e. The maximum lift permitted in the suspension system is four (4) inches (10.16 centimeters).
5. A person charged with violating this ordinance has the burden of proceeding to show that the modifications are permitted under this section.
6. Vehicles owned by law enforcement agencies, the military, fire fighting agencies and ambulances may be modified without regard to this ordinance. (Source: NDCC Section 39-21-45.1)
9.1706 Scope and Effect of Equipment Requirements - Penalty
1. It is unlawful for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which the actor knows to be in such unsafe condition as to endanger any person, or which the actor knows does not contain those parts or is not at all times equipped with lamps and other equipment in proper condition and adjustment as required in this chapter, or which the actor knows is equipped in any manner in violation of this chapter, or for any person to do any
151
act forbidden or fail to perform any act required under this ordinance. Unless otherwise specifically provided in this chapter or in NDCC Sections 39-06.1-08 or 39-06.1-09, any person who, in violation of this ordinance, drives, or any owner who causes or knowingly permits to be driven upon a highway, any vehicle or combination of vehicles which that person knows is unsafe or improperly equipped is guilty of an infraction.
2. Nothing contained in this ordinance may be construed to prohibit the use of additional parts and accessories on any vehicle not inconsistent with the provisions of this chapter.
3. The provisions of this ordinance with respect to equipment on vehicles do not apply to implements of husbandry, road machinery, road rollers or farm tractors except as specifically made applicable.
4. The provisions of this ordinance with respect to equipment required on vehicles do not apply to motorcycles or motor-driven cycles, except as specifically made applicable.
5. The provisions of this ordinance do not apply to vehicles moved solely by human power, except as specifically made applicable. (Source: NDCC Section 39-21-46)
ARTICLE 18 - Lighted Lamps Required
9.1801 When Lighted Lamps are Required
Subject to exceptions with respect to parked vehicles, every vehicle upon a highway within this state must display lighted lamps and illuminating devices as required in this chapter for different classes of vehicles as follows:
1. At any time from sunset to sunrise, and every farm tractor upon a highway within this state at any time from a half hour after sunset to a half hour before sunrise;
2. At any time when it is raining, snowing, sleeting or hailing or during other adverse driving conditions and these conditions do not render a person or vehicle on the highway clearly discernible at a distance of one thousand (1000) feet (304.8 meters) ahead; or
3. At any other time when visibility is impaired by weather, smoke, fog or other conditions or when there is insufficient light to render a person or vehicle on the highway clearly discernible at a distance of one thousand (1000) feet (304.8 meters) ahead.
152
Stoplights, turn signals and other signaling devices must be lighted as prescribed for the use of such devices. NDCC Section 39-21-01)
ARTICLE 19 - Regulating the Kinds and Classes of Traffic on Certain Roads
9.1901 Load Restrictions Upon Vehicles Using Certain Roadways
When signs are erected giving notice thereof, no person may operate any vehicle with a gross weight in excess of the maximum indicated weight at any time upon any street or part of a street so designated.
9.1902 Commercial Vehicles Prohibited from Using Certain Streets
When signs are erected giving notice thereof, no person may operate any commercial vehicle exceeding the maximum indicated gross weight at any time upon any street or part of a street so designated except that such vehicles may be operated thereon for the purpose of delivering or picking up materials or merchandise and then only by entering such street at the intersection nearest the designation of the vehicle and proceeding thereon no farther than the nearest intersection thereafter.
9.1903 Size Restrictions Upon Vehicles Using Certain Highways
When signs are erected giving notice thereof, no person may operate any vehicle exceeding the dimensions specified by such sign or signs at any time upon any street or part of a street so designated.
9.1904 Restrictions Upon Use of Streets by Certain Vehicles
1. The city traffic engineer or authorized person may determine and designate those heavily traveled streets upon which shall be prohibited the use of the roadway by motor-driven cycles, bicycles, horse-drawn vehicles or other non-motorized traffic and shall erect appropriate signs giving notice thereof.
2. When signs are so erected giving notice thereof, no person may disobey the restrictions stated on such signs.
ARTICLE 20 - Criminal Traffic Violations
9.2001 Operation of Snowmobiles
1. Definitions:
For the purpose of this article, the following definitions are hereby adopted:
153
1. “Operate” means to ride in or on and control the operation of a snowmobile.
2. “Operator” means every person who operates or is in actual physical control of a snowmobile.
3. “Owner” means a person, other than a lienholder, having the property in or title to a snowmobile entitled to the use or possession thereof.
4. “Registrar” or “Director” means the director of the Department of Transportation of this state as provided in NDCC Section 24-02-01.3.
5. “Roadway” means that portion of a highway improved, designed or ordinarily used for vehicular travel.
6. “Snowmobile” means a self-propelled vehicle designed for travel on snow, ice or a natural terrain and steered by skis or runners. (Source: NDCC Section 39-24-01)
9.2002 Rules for Operation of Snowmobiles
1. No person may operate a snowmobile upon the roadway, shoulder or inside bank or slope of any road, street or highway in this City except as provided pursuant to this article. No snowmobile shall be operated at any time within the right of way of any interstate highway except for emergency purposes.
2. A snowmobile may make a direct crossing of a street or highway provided:
a. The crossing is made at an angle of approximately ninety (90) degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
b. The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
c. The driver yields the right of way to all oncoming traffic which constitutes an immediate hazard; and
d. In crossing a divided highway, the crossing is made only at an intersection of such highway with another public street or highway.
3. No snowmobile may be operated unless it is equipped with at least one (1) headlamp, one tail lamp and brakes, all in working order,
154
which conform to standards prescribed by rule of the director pursuant to the authority vested in the director by state law.
4. The emergency conditions under which a snowmobile may be operated other than as provided by this article shall be such as to render the use of an automobile impractical under such conditions at such period of time and location.
5. It is unlawful for any person to drive or operate any snowmobile in the following ways which are declared to be unsafe and a public nuisance:
a. At a rate of speed greater than reasonable or proper under all the surrounding circumstances.
b. In a careless, reckless or negligent manner so as to endanger the person or property of another or to cause injury or damage to such person or property.
c. While under the influence of intoxicating liquor or a drug as defined in NDCC Section 39-24.1-01, or a combination thereof.
d. Without a lighted headlamp and tail lamp when required for safety.
e. In any tree nursery or planting in a manner which damages or destroys growing stock.
f. Without a manufacturer-installed or equivalent muffler in good working order and connected to the snowmobile exhaust system.
g. Upon any private land when the private land is posted by the owner or tenant prohibiting trespassing. The name of the person posting the land must appear on each sign in legible characters. The posted signs shall be readable from the outside of the land and shall be placed conspicuously at a distance of not more than eight hundred eighty (880) yards (804.68 meters) apart, provided further that as to land entirely enclosed by a fence or other enclosure, posting of signs at or on all gates through the fence or enclosure constitutes posting of all the enclosed lands.
6. It is unlawful for any person to operate a snowmobile pursuant to NDCC Chapter 39-24 without having in possession a valid driver’s license or permit, except as provided by NDCC Section 39-24-09.1.
155
7. When snowmobiles are operated within the right of way of any road, street or highway of this state pursuant to this chapter, during times or conditions that warrant the use of lights, such snowmobiles shall travel in the same direction as the direction of motor vehicles traveling on the side of the roadway immediately adjacent to the side of the right of way traveled by the snowmobile.
8. It is unlawful for any person to operate a snowmobile within a highway right of way as defined in NDCC Section 24-01-01.1(7) between April 1 and November 1 of any year.
9. No snowmobile may be operated at any time within the right of way of any highway within this state while towing a sled, skid or other vehicle, unless the sled, skid or other vehicle is connected to the snowmobile by a hinged swivel and secure hitch.
10. No person under the age of eighteen years may operate, ride or otherwise be propelled on a snowmobile unless the person wears a safety helmet meeting United States department of transportation standards.
9.2003 Operation of Motor Vehicle, Tractor or Other Vehicle Prohibited on Flood Protective Works - Exception - Penalty
1. Unless authorized by the authority in charge thereof, no person shall operate a motor vehicle, tractor or other vehicle upon or across any flood protective works, including but not limited to, any dike or flood protective works constructed by a state or federal agency or by any municipality or local subdivision of the state.
2. Any person violating the provisions of this section shall be liable to any person suffering injury as a result of the violation; and in addition, shall be guilty of a class B misdemeanor. (Source: NDCC Section 30-10-65)
9.2004 Driving Without a License
No person shall drive any motor vehicle upon a highway in this City unless such person has a valid license as an operator, or is expressly exempted from licensing requirements, by the laws of this state.
9.2005 License to be Carried and Exhibited on Demand
The provisions of NDCC Section 39-06-16 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
156
Every licensee shall have the licensee’s operator’s license or permit in the licensee’s immediate possession at all times when operating a motor vehicle and shall display the same, upon demand of any district court, municipal court, a patrolman, peace officer or a field deputy or inspector of the State Highway Department. However, no person charged with violating this section may be convicted or assessed any court costs if the person produces in court, to the Chief of Police or in the office of the arresting officer an operator’s license or permit theretofore issued to that person and valid and not under suspension, revocation or cancellation at the time of the person’s arrest.
9.2006 Penalty
The provisions of NDCC Section 39-12-21 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Any driver of a vehicle who refuses to stop and submit the vehicle and load to a weighing when directed to do so by any police officer or any agent of this state having police powers relating to motor vehicles is guilty of an infraction.
ARTICLE 21 - Disposition of Traffic Offenses
9.2101 Halting Person for Violating Traffic Regulations - Duty of Officer Halting
The provisions of NDCC Section 39-07-07 and all subsequent amendment shall be and are hereby incorporated by reference in this ordinance.
Whenever any person is halted for the violation of any of the provisions of NDCC Chapters 39-01 through 39-13, 39-18, 39-21 and 39-24, or of equivalent City ordinances, the officer halting that person, except as otherwise provided in Section 39-07-09 and Section 39-20-03.1 or 39-20-03.2 may:
1. Take the name and address of the person;
2. Take the license number of the person’s motor vehicle; and
3. Issue a summons or otherwise notify that person in writing to appear at a time and place to be specified in the summons or notice.
A halting officer employed by the City may not take a person into custody or require that person to proceed with the officer to any other location for the purpose of posting bond, where the traffic violation was a non-criminal offense under NDCC Section 39-06.1-02. The officer shall provide the person with an envelope for use in mailing the bond.
157
9.2102 Hearing - Time - Promise of Defendant to Appear - Failure to Appear - Penalty
The provisions of NDCC Section 39-07-08 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The time to be specified in the summons or notice provided for in 9.2201 must be within thirty-five (35) days after the issuance of the summons or notice or earlier if so ordered by the municipal judge or if the person halted demands an earlier hearing. If the person halted desires, the person may have the right, at a convenient hour, to an immediate hearing or to a hearing within twenty-four (24) hours. The hearing must be before the municipal court. Upon the receipt from the person halted of a written promise to appear at the time and place mentioned in the summons or notice, such officer shall release the person from custody. Any person refusing to give a written promise to appear must be taken immediately by the halting officer before the nearest or most accessible magistrate, or to such other place or before such other person as may be provided by a statute or ordinance authorizing the giving of bail. Any person willfully violating the person’s written promise to appear is guilty of an offense, regarding of the disposition of the charge upon which the person originally was halted. The time limitations for a hearing as provided by this section do not preclude a recharging of the alleged violation if the person being charged receives a new summons or notice subject to the provisions of this section.
9.2103 Offenses Under Which Person Halted May Not be Entitled to Release Upon Promise to Appear
The provisions of NDCC Section 39-07-09 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The provisions of Section 9.2101 do not apply to a person if:
1. The halting officer has good reason to believe the person guilty of any felony or if the person is halted and charged with any of the offenses listed in NDCC Section 39-06.1-05, but not listed in subsection 2 of said section; or
2. The halting officer, acting within the officer’s discretion, determines that it is inadvisable to release that person upon a promise to appear and if the person has been halted and charged with any of the following offenses
a. Reckless driving.
158
b. Driving in excess of speed limitations established by the state or by local authorities in their respective jurisdictions.
c. Driving while license or driving privilege is suspended or revoked for violation of NDCC Section 39-06-42, or an equivalent ordinance.
d. Operating a modified vehicle.
e. Driving without liability insurance in violation of NDCC Section 39-08-20.
f. Failing to display a placard or flag, in violation of any rule implementing NDCC Section 39-21-22, while transporting explosive or hazardous materials.
g. Operating an unsafe vehicle in violation of subsection 1 of NDCC Section 39-21-45.
9.2104 Traffic Violations Non-criminal – Exceptions - Procedures
Any person cited, in accordance with the provisions of NDCC Sections 39-07-07 and 39-07-08, for a traffic violation under state law or municipal ordinance, other than an offense listed in NDCC Section 39-06.1-05, is deemed to be charged with a non-criminal offense. The person may appear before the designated official and pay the statutory fee for the violation charged at or before the time scheduled for a hearing. If the person has posted bond in person or by mail, the person may forfeit bond by not appearing at the designated time. If the person appears at the time scheduled in the citation, the person may make a statement in explanation of the person’s action, and the official may at that time waive, reduce or suspend the statutory fee or bond, or both. If the person cited follows the foregoing procedures, the person is deemed to have admitted the violation and to have waived his right to a hearing on the issue of commission of the violation. The bond required to secure appearance before the official designated in the citation must be identical to the statutory fee established by NDCC Section 39-06.1-06. Within ten (10) days after forfeiture of bond or payment of the statutory fee, the official having jurisdiction over the violation shall certify to the licensing authority:
1. Admission of the violation; and
2. In speeding violations, whether the speed charged was in excess of the lawful speed limit by more than nine (9) miles (14.8 kilometers) per hour and the miles (kilometers) per hour by which the speed limit was exceeded.
159
This section shall not be construed as allowing a halting officer to receive the statutory fee or bond, unless he is otherwise authorized by law to do so. (Source: NDCC Section 30-06.1-02)
9.2105 Failure to Appear, Pay Statutory Fee, Post Bond - Procedure - Penalty
The provisions of NDCC Section 39-06.1-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
If a person fails to choose one of the methods of proceeding set forth in Section 9.2104, the person must be deemed to have admitted to commission of the violation charged, and the official having jurisdiction shall report such fact to the licensing authority within ten (10) days after the date set for the hearing. Failure to appear at the time designated, after signing a promise to appear, without paying the statutory fee or posting and forfeiting bond is a class B misdemeanor. Failure to appear without just cause at the hearing must also be deemed an admission of commission of the violation charged.
9.2106 Amount of Statutory Fees
The provisions of NDCC Section 39-06.1-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The fees required for a criminal disposition pursuant to Section 9.2104 shall be as follows:
1. For a nonmoving violation as defined in Section 9.2107, a fee of any amount not to exceed twenty dollars ($20.00).
2. For a moving violation as defined in Section 9.2108, a fee of twenty dollars ($20.00), except no fee may be imposed for a violation of Section 9.1702.
3. For a violation of Section 9.0502 a fee established as follows:
Miles Per Hour Over
Lawful Speed Limit Fee
______________________________________________________________
1 - 5 $ 5.00
6 - 10 $ 5.00 plus $1/each mph over 5 mph over limit
160
11 - 15 $ 10.00 plus $1/each mph over 10 mph over limit
16 - 20 $ 15.00 plus $2/each mph over 15 mph over limit
21 - 25 $ 25.00 plus $3/each mph over 20 mph over limit
26 - 35 $ 40.00 plus $3/each mph over 25 mph over limit
36 - 45 $ 70.00 plus $3/each mph over 35 mph over limit
46 + $100.00 plus $5/each mph over 45 mph over limit
______________________________________________________________
4. For a violation of Section 9.0501, or an ordinance defining careless driving, a fee of thirty dollars ($30.00).
5. For a violation of Section 9.0508, or an ordinance defining care required in driving, a fee of not less than ten dollars ($10.00) nor more than thirty dollars ($30.00).
6. For a violation of Section 9.1703, a fee not to exceed twenty dollars ($20.00).
9.2107 “Nonmoving Violation” Defined
The provisions of NDCC Section 39-06.1-08 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
For the purpose of 9.2106, a “nonmoving violation” means Sections 9.0922, 9.0923 or the provisions of ARTICLE 13, ARTICLE 14, ARTICLE 15, and ARTICLE 16.
9.2108 “Moving Violation” Defined
The provisions of NDCC Section 39.06.1-09 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
For the purpose of 9.2106, a “moving violation” means a violation of ARTICLE 5, ARTICLE 6, ARTICLE 9, ARTICLE 11, ARTICLE 17, ARTICLE 18 and ARTICLE 20, except those sections for which a specific penalty is provided.
9.2109 General Penalty for Violation of Chapter
The provisions of NDCC Section 39-07-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
161
Any person violating any of the provisions of this chapter for which another criminal penalty is not provided specifically is guilty of an infraction as defined in NDCC Section 12.1-32-01. As used in this section, the phrase “another criminal penalty” includes provision for payment of a fixed fee for violating another section of this chapter but does not include other administrative sanctions which may be imposed.
9.2110 Notification of Parents or Guardians of Juvenile Traffic Offenders
The municipal judge or municipal court clerk shall notify the parent or guardian of any juvenile appearing before the court on a traffic offense of the charge as contained in the citation, the penalty attached to the offense and the time and place of any court hearing on the matter.
ARTICLE 22 - Sections not Adopted
The sections of NDCC Title 39 not expressly adopted in ARTICLE 1 through ARTICLE 21, inclusive, are not adopted by reference.
ARTICLE 23 - Filing of Ordinance
Incident to the adoption of certain portions of NDCC Title 39 by reference, a copy of the text of the adopted code shall be filed in the office of the City Auditor as required by NDCC Section 40-05-01(1) for use and examination by the public.
ARTICLE 24 - Adoption of Amendments by Reference
The adoption of certain portions of NDCC Title 39 by reference shall be construed to incorporate such amendments as may be made therein from time to time, and such copy of the adopted portions to NDCC Title 39 filed as required in ARTICLE 23 shall at all times be kept current in the office of the City Auditor of this City.
ARTICLE 25 - Severability Clause
If any provision of this ordinance or its application to any person, or circumstances is held invalid, the remainder of the ordinance or the application of the provision to other persons or circumstances is not affected.
ARTICLE 26 - Penalties
Any person who is convicted of violating or of failing to comply with any of the provisions of this ordinance where another penalty is not prescribed may be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment not to exceed thirty (30) days, or both.
162
163
CHAPTER TEN
HEALTH
ARTICLE 1 - Board of Health
10.0101 Members
10.0102 Regulations
ARTICLE 2 - Local Health Officer
10.0201 Penalty
ARTICLE 3 - Garbage, Refuse, Rubbish
10.0301 Definitions
10.0302 Accumulation of Refuse Prohibited
10.0303 Containers
10.0304 Burning
10.0305 Nuisance
10.0306 City Collection
10.0307 Fees
10.0308 Fees - Payment - Collection
10.0309 Rules and Regulations
ARTICLE 4 - Dangerous Buildings
10.0401 Standards for Repair, Vacation or Demolition
10.0402 Dangerous Buildings - Nuisances
10.0403 Duties of Building Inspector
10.0404 Duties of the City Council
10.0405 Failure to Comply with Decision of the City Council
10.0406 Violations - Penalty for Disregarding Notices or Orders
10.0407 Duties of the City Attorney
10.0408 Where Owner Absent from the City
10.0409 Duties of Fire, Police and Health Departments
10.0410 Appeal
APPENDIX 10-1: In the Matter of a “Dangerous Building” / Notice of Hearing
APPENDIX 10-2: In the Matter of a “Dangerous Building” / Notice and Order
APPENDIX 10-3: Warning
164
CHAPTER TEN
HEALTH
ARTICLE 1 – Board of Health
10.101 Members
The Board of Health is composed of the members of the City Council and City Health Officer, who may exercise all powers allowed under the law as set forth in NDCC Section 23-35-03.
10.0102 Regulations
The Board of Health may make rules regarding any nuisance, source of filth, and any cause of sickness which are necessary for public health and safety. The Board of Health shall appoint a local health officer.
ARTICLE 2 – Local Health Officer
10.0201 Penalty
Any person who violates any order, ordinance, or rule prescribed by the board of health or health officer or any rule adopted under this chapter is guilty of a Class B Misdemeanor punishable by a fine of not more than one thousand dollars ($1000.00) or by imprisonment not to exceed thirty (30) days or both such fine and imprisonment.
ARTICLE 3 – Garbage, Refuse, Rubbish
10.0301 Definitions
For the purpose of this article the following words shall have the meanings given herein:
1. “Ashes” is the residue from burning wood, coal, coke or other combustible materials.
2. “Garbage” is putrescible animal and vegetable wastes resulting from the handling, preparation, cooking and consumption of food.
3. “Refuse” is all putrescible and non-putrescible solid wastes (except body wastes) including garbage, rubbish, ashes, street cleanings,
165
dead animals, abandoned automobiles, and solid market and industrial wastes.
4. “Rubbish” is non-putrescible solid wastes (excluding ashes) consisting of both combustible and non-combustible wastes, such as paper, cardboard, tin cans, yard clippings, wood, glass, bedding, crockery and similar materials.
10.0302 Accumulation of Refuse Prohibited
No person shall permit or allow to accumulate in or about any yard, lot, place or premises; or upon any street or sidewalk, adjacent to or abutting upon any lot, block or place, or premises owned and occupied by that person, any refuse, nor allow such yard, lot, place or premises to be or remain in such condition.
10.0303 Containers
All garbage and rubbish shall be placed by the person upon whose premises the same shall have been produced or accumulated, in watertight containers, which shall be protected against the access of flies and rodents.
Containers shall be placed in the alley of those lots having garbage pick-up access to any alley and along the curb of the adjacent street as prescribed by the City for each particular location in the City.
10.0304 Burning
No garbage, refuse or rubbish shall be burned within the City.
10.0305 Nuisance
Failure to comply with the provisions of Sections 10.0302, 10.0303 and 10.0304, shall constitute a public nuisance and be punishable as such under the terms of Chapter Twelve of these ordinances.
10.0306 City Collection
All garbage and rubbish as defined herein shall be collected by the city or franchised contractor as frequently as is necessary to maintain and preserve community cleanliness and sanitation, except that this section shall not require the collection of garbage and rubbish where streets and alleys are in a temporary condition which makes it impossible to do so and in case of the failure to collect such garbage and rubbish, such failure shall not relieve the occupant of the premises from the payment of the garbage and rubbish collection fees hereinafter provided for.
166
10.0307 Fees
Fees for the collection of garbage rubbish by the City or franchised contractor and the disposal thereof shall be set by the City Council.
10.0308 Fees – Payment – Collection
In all places where water service is provided, fees for garbage and rubbish collection shall be added to and collected as a part of the water bill and collected by the water department, but shall be separately stated on the bill. Garbage and rubbish collection bills shall be due and payable at the same time as the water bill. If such charge is not paid when due the water service to such premises shall be shut off by the water department in the same manner as is now provided for in the case of delinquency in payment of water bills and such service shall not be restored without the payment of the delinquency and penalties.
In all places where water service is not provided, the fees for garbage and rubbish collection shall be paid independently to the City. If the garbage and rubbish charge so established is not paid when due, such sum may be recovered by the City in an action at law against the owner or occupant, or both, of the property so served.
10.0309 Rules and Regulations
The City shall prescribe and publish such reasonable rules and regulations in connection with preparation, handling and disposition of garbage and rubbish as may be necessary to regulate, enforce and carry out the provisions of this chapter. The City may direct that the City garbage and rubbish collection crews not collect garbage and rubbish from any premises where such rules and regulations are not complied with and the failure to collect the same shall not relieve the owner or occupant of the premises from the payment of fees nor from the enforcement of the penalties of this code. In the absence of City collection crews the health officer may give instructions to a franchised contractor.
ARTICLE 4 – Dangerous Buildings
10.0401 Standards for Repair, Vacation or Demolition
The following standards shall be followed in substance by the building inspector and the City Council in ordering repair, vacation or demolition:
1. If the “dangerous building” can be reasonably repaired so that it will no longer exist in violation of the terms of this article it shall be ordered repaired.
167
2. If the “dangerous building” is in such condition as to make it dangerous to the health, safety, or general welfare of its occupants it shall be ordered to be vacated.
3. In all cases where a building cannot be repaired so that it will no longer exist in violation to the terms of this article it shall be demolished. In all cases where a “dangerous building” is a fire hazard existing or erected in violation of the terms of this article or any ordinance of the City or statute of the State of North Dakota, it shall be demolished.
10.0402 Dangerous Buildings – Nuisances
All “dangerous buildings” as determined by the public health officer or building inspector are hereby declared to be public nuisances and shall be repaired, vacated or demolished as provided in this ordinance or under state law.
10.0403 Duties of Building Inspector
The building inspector, as designated by the City Council, shall:
1. Inspect or cause to be inspected periodically, all public buildings, schools, halls, churches, theaters, hotels, tenements, commercial, manufacturing or loft buildings for the purpose of determining whether any conditions exist which render such places a “dangerous building”.
2. Inspect any building, wall or structure about which any person to the effect files complaints that a building, wall, or structure is or may be existing in violation of this article.
3. Inspect any building, wall or structure reported by the fire or police departments of this City as probably existing in violation of the terms of this article.
4. Notify in writing the owner, occupant, lessee, mortgagee and all other persons having an interest in said building, as shown by the records in the office of the Oliver County Recorder, of any building found by the building inspector to be a “dangerous building” that: (a) the owner must vacate, or repair, or demolish said building in accordance with the terms of the notice and this article; (b) the owner or occupant must vacate said building or may have it repaired in accordance with the notice and remain in possession. Provided, that any person notified under this subsection to repair, vacate, or demolish any building shall be given such reasonable time, not exceeding thirty (30) days as may be necessary to do, or
168
have done, the work or act required by the notice provided for herein.
5. Set forth in the notice provided for in subsection 4 hereof a description of the building or structure deemed unsafe, a statement of the particulars which make the building or structure a “dangerous building”, and an order requiring the same to be put in such condition as to comply with the terms of this ordinance within such length of time, not exceeding thirty (30) days, as is reasonable.
6. Report to the City Council any noncompliance with the “notice” provided for in subsection 4 and 5 hereof.
7. Appear at all hearings conducted by the City Council and testify as to the conditions of “dangerous buildings”.
8. Place a notice on all “dangerous buildings” reading as follows: “This building has been found to be a dangerous building by the building inspector. This notice is to remain on this building until it is repaired, vacated, or demolished in accordance with the notice which has been given the owner, occupant, lessee or mortgagee of this building and all other persons having an interest in said building as shown by the records of the Oliver County Recorder. It is unlawful to remove this notice until such notice is complied with.”
10.0404 Duties of the City Council
The City Council shall:
1. Upon receipt of a report of the building inspector as provided for in Section 10.0403, subsection 6 hereof, give written notice to the owner, occupant, mortgagee, lessee and all other persons having an interest in said building as shown by the records of the Oliver County Recorder, to appear before it on the date specified in the notice to show cause why the building or structure reported to be a “dangerous building” should not be repaired, vacated or demolished in accordance with the statement of particulars set forth in the building inspector’s notice provided for herein in Section 10.0403, subsection 5.
2. Hold a hearing and hear such testimony as the building inspector or the owner, occupant, mortgagee, lessee or any other person having an interest in said building as shown by the records of the Oliver County Recorder shall offer relative to the “dangerous building”.
169
3. Make written findings of fact from the testimony offered pursuant to subsection 2 as to whether or not the building in question is a “dangerous building”.
4. Issue an order based upon findings of fact made pursuant to subsection 3 commanding the owner, occupant, mortgagee, lessee, and all other persons having an interest in said building as shown by the records of the Oliver County Recorder to repair, vacate or demolish any building found to be a “dangerous building” within the terms of this article and provided that any person so notified, except the owners, shall have the privilege of either vacating or repairing said “dangerous building”.
10.0405 Failure to Comply with Decision of the City Council
If the owner, occupant, mortgagee or lessee fails to comply with the order of the City Council or fails to appeal to the District Court within thirty (30) days as provided herein, the City through its officers and employees shall cause such building or structure to be repaired, vacated or demolished as ordered by the City Council and shall cause the costs of such repair, vacation or demolition to be charged against the land on which said building existed by special assessment, or as a municipal lien, or shall cause said cost of removal to be levied as a special tax against the land upon which said building stands or did stand or to be recovered in a suit at law against the owner.
10.0406 Violations – Penalty for Disregarding Notices or Orders
The owner of any “dangerous building” who shall fail to comply with any notice or order to repair, vacate or demolish said building given by any person authorized by this article to give such notice or order shall be guilty of an infraction and upon conviction thereof shall be fined not exceeding five hundred dollars ($500.00) for each offense and every day subsequent to such notice in which the said owner shall fail to comply with any notice or order as above stated shall be deemed a separate offense.
The occupant or lessee in possession who fails to comply with any notice to vacate or who fails to repair said building in accordance with any notice given as provided for in this article shall be guilty of an infraction and upon conviction thereof shall be fined not exceeding five hundred dollars ($500.00) for each offense and every day subsequent to such notice in which the said occupant or lessee shall fail to comply with any notice or order as above stated, shall be deemed a separate offense.
Any person removing the notice provided for in Section 10.0403, subsection 8 thereof shall be guilty of an infraction and upon conviction shall be fined not exceeding five hundred dollars ($500.00) for each offense.
170
10.0407 Duties of the City Attorney
The city attorney shall:
1. Prosecute all persons failing to comply with the terms of the notices provided for herein in Section 10.0403, subsections 4 and 5 and the order provided for in Section 10.0404, subsection 4.
2. Appear at all hearings before the City Council in regard to “dangerous buildings”.
3. Take such other legal action as is necessary to carry out the terms and provisions of this article.
10.0408 Where Owner Absent from the City
In cases, except emergency cases, where the owner, occupant, lessee or mortgagee is absent from the City, all notice or orders provided for herein shall be sent by registered or certified mail to the owner, occupant, mortgagee, lessee and all other persons having an interest in said building as shown by the land records of the Oliver County Recorder to the last known address of each, and a copy of such notice shall be posted in a conspicuous place on the "dangerous building" to which it relates. Such mailing and posting shall be deemed adequate service.
10.0409 Duties of Fire, Police and Health Departments
All employees of the fire, police and health departments shall make written reports to the building inspector of all buildings or structures which are, may be or are suspected to be “dangerous buildings” as herein defined.
10.0410 Appeal
The City Council shall serve upon the owner, occupant, mortgagee, lessee and all other persons having an interest in any building ordered to be repaired, vacated or demolished, a copy of its order. The owner, occupant, mortgagee or lessee shall thereafter have thirty (30) days from the date of the service of such order in which to appeal from such order to the District Court or to take such other legal steps to enjoin the enforcement of such order as he may deem proper.
171
APPENDIX 10-1
IN THE MATTER OF A “DANGEROUS BUILDING” LOCATED
AT ___________________________________, CENTER, NORTH DAKOTA
UNDER ARTICLE 4, CHAPTER TEN
NOTICE OF HEARING
You are hereby notified that the building inspector of the City of Center, North Dakota, has filed with the City Council a report that you have not complied with a Notice and Order that the building located at ______________________________________ was a dangerous building and was to be demolished by you prior to _________________, 20___.
You are further notified to appear before the City Council at the City offices at the Center Civic Center, Center, North Dakota, on the ____ day of ____________, 20___, at the hour of _______o’clock ___m., to show cause as to why the building reported to be a “dangerous building”, should not be demolished in accordance with the statement of particulars set forth in the Building Inspector’s Notice.
Dated___________, 20___.
THE CITY OF CENTER, NORTH DAKOTA
By: _____________________________
Mayor
ATTEST:
City Auditor
172
APPENDIX 10-2
IN THE MATTER OF A “DANGEROUS BUILDING” IN
THE CITY OF CENTER, NORTH DAKOTA,
LOCATED AT:
_________________________________________
NOTICE AND ORDER
You are hereby notified that the undersigned building inspector of the City of Center, North Dakota, acting pursuant to Article 4, Chapter 10 of the Ordinances of the City of Center, 2005, has made an inspection of the following described building in which you are, or appear to be, interested, to-wit: _______
______________________________________________________________
______________________________________________________________
You are further notified that the undersigned building inspector deems the foregoing described building to be dangerous in the following particulars: ______
_______________________________________________________________
_______________________________________________________________
YOU ARE THEREFORE ORDERED TO ________________________
______________________________________________________________
______________________________________________________________
the said building on or before the _______ day of___________________, 20____.
Dated this _____ day of ___________, 20_____.
________________________________
Building Inspector
173
APPENDIX 10-3
(Should be printed in red but not made invalid if printed in different color.)
WARNING
Whereas it has been determined by appropriate inspection that the dwelling or building to which this notice is attached does not comply with Ordinances of the City of Center, ND, all persons are hereby warned that it is unlawful to rent, lease, let, occupy or permit the use or occupancy of this dwelling or building, for dwelling purposes or as a place of employment for human beings, or to remove or molest this notice.
________________________________
Center City Health Officer
Center, North Dakota
174
CHAPTER ELEVEN
ANIMALS AND FOWL
ARTICLE 1 - General Regulations
11.0101 Cruelty - Penalty
11.0102 Dangerous Animals
11.0103 Permit - When Issued
11.0104 Killing Dangerous Animals
11.0105 Diseased Animals
11.0106 Housing
11.0107 Keeping of Certain Animals Prohibited
11.0108 Strays
11.0109 Noises
11.0110 Penalty
ARTICLE 2 - Dogs and Cats
11.0201 License Required
11.0202 Licensing Procedure and Terms
11.0203 License Fee
11.0204 License: When Due and Payable
11.0205 Dog or Cat Running at Large Prohibited
11.0206 Disposition of Unlawful Dogs or Cats
11.0207 Disposition of Unclaimed Dogs or Cats
11.0208 Return to Owner if Known
11.0209 Noisy Dog or Cat Prohibited
11.0210 Nuisance - When
11.0211 Penalty
175
CHAPTER ELEVEN
ANIMALS AND FOWL
ARTICLE 1 – General Regulations
11.0101 Cruelty – Penalty
No person shall cruelly treat any animal in the City in any way. Any person who inhumanly beats, underfeeds, overloads or abandons any animal shall be deemed guilty of an offense for which the maximum penalty shall be a fine of one thousand dollars ($1000.00), thirty (30) days imprisonment, or both such fine and imprisonment. (Source: NDCC Section 36-21.1-02)
11.0102 Dangerous Animals
It shall be unlawful to permit any dangerous animal or vicious animal of any kind to run at large within the City. Exhibitions or parades of wild animals may be conducted only upon securing a permit from the Chief of Police. It shall also be unlawful to keep or harbor within the City any dangerous animal without first having obtained a permit to keep or harbor such animal from the Chief of Police.
11.0103 Permit – When Issued
The Chief of Police shall have discretion as to whether or not to issue a permit pursuant to Section 11.0102. If the Chief of Police shall refuse to issue a permit, the decision may be appealed to the City Council. No permit shall be issued without first obtaining a description of the animal, the name of the owner or person in charge, the purpose for which the animal is kept, and such other pertinent information as the Chief of Police shall determine. Any dangerous animal kept or allowed to run at large without the owner or keeper having first obtained a permit in compliance with this section is hereby declared a nuisance and the owner or keeper shall be guilty of a violation of this article.
11.0104 Killing Dangerous Animals
The members of the police department or any other person in the City are authorized to kill any dangerous animals of any kind when it is necessary for the protection of any person or property.
11.0105 Diseased Animals
No domestic animal afflicted with a contagious or infectious disease shall be allowed to run at large, or to be exposed in any public place whereby the
176
health of man or beast may be affected; nor shall such diseased animal be shipped or removed from the premises of the owner thereof, except under the supervision of the Chief of Police or the health officer.
It is hereby made the duty of the health officer to secure such disposition of any diseased animal and such treatment of affected premises as to prevent the communication and spread of the contagion or infection, except in cases where the state veterinarian is empowered to act.
11.0106 Housing
No person shall cause or allow any stable or place where any animal is or may be kept to be unclean, or unwholesome.
11.0107 Keeping of Certain Animals Prohibited
It shall be unlawful to keep any live sheep, swine or pigs, cattle, chickens or other poultry, goats, or rabbits in the City. This section shall not apply to any person, partnership or corporation keeping or handling such animals under consignment in the course of regular business or to a licensed livestock auction market.
11.0108 Strays
It shall be unlawful to permit any cattle, horses, sheep, swine, goats or poultry to run at large in the City; and any such animal running at large in any public place in the City shall be impounded. It shall further be unlawful to picket or tie any such animal in any of the streets of the City for the purpose of grazing or feeding.
11.0109 Noises
It shall be unlawful to harbor or keep any animal, which habitually disturbs the peace by loud noises at any time of the day or night.
11.0110 Penalty
Any person who shall violate the provisions of this article for which a specific penalty is not otherwise provided shall be guilty of an infraction for which the maximum penalty is a fine of five hundred dollars ($500.00). The owner of any animal impounded pursuant to the provisions of this article shall pay all costs and charges assessed for such impoundment before such animal shall be released to the owner.
177
ARTICLE 2 – Dogs and Cats
11.0201 License Required
No dog or cat shall be permitted to be or remain in the City without being licensed as hereinafter provided if over two months of age. It shall be the duty of the owner or keeper of any dog or cat kept within the City to have the dog or cat inoculated against rabies.
11.0202 Licensing Procedure and Terms
All dogs and cats shall be registered as to sex, breed, name and address of owner and name of dog or cat. Licenses shall be issued by the Auditor on an annual basis as hereinafter more fully provided. The person paying the license fee shall receive a receipt therefore and a metal tag or badge with which to mark the animal. It shall be the duty of the owner or keeper to cause such license tag or badge to be securely attached around the animal’s neck and kept there at all times during the license period.
11.0203 License Fee
The license fee shall be $5.00 annually for each male dog and cat and each spayed female dog and cat, and $10.00 for all other dogs and cats. The owner of any spayed female dog shall present to the Auditor a letter or certificate signed by a licensed veterinarian to the effect that such dog has been spayed or such other evidence as the Auditor shall require.
11.0204 License: When Due and Payable
The license fees or renewal fees previously provided for shall become due and payable on the 1st day of June in each year and shall become delinquent on the 1st day of September in each year. If the fee is not paid before the first day of September a penalty of $5.00 shall be added to the license or renewal fee.
11.0205 Dog or Cat Running at Large Prohibited
It shall be unlawful for the owner or keeper of any dog or cat to permit the same to run at large in the City at any time. A dog or cat shall not be considered running at large if attended and on a leash or when in the confines of the owner’s or keeper’s premises.
11.0206 Disposition of Unlawful Dogs or Cats
Any unlicensed dog or cat or any dog or cat running at large may be taken up by any police officer and impounded at the City pound, or such other place as may be designated by the City Council. The dog or cat shall not be released to
178
any person until such dog or cat is licensed (if unlicensed); a fee of $10.00 is paid for the taking of each animal, and all pound charges are paid directly to the facility where the dog or cat is housed.
11.0207 Disposition of Unclaimed Dogs or Cats
The owner or keeper shall be notified of the taking of the dog or cat. If the owner or keeper fails to pay the charges (including license if necessary) and claim the animal within three days of notification the animal may be destroyed. If the owner or keeper is unknown, the Chief of Police shall give public notice of the taking of the animal before it is destroyed or otherwise disposed of.
11.0208 Return to Owner if Known
Notwithstanding the provisions of Section 11.0206, if a dog or cat is found at large and its owner can be identified and located, such dog or cat need not be impounded but may, instead, be taken to the owner. In such case the police officer or other officer may proceed against the owner or keeper for violation of this article.
11.0209 Noisy Dog or Cat Prohibited
It shall be unlawful to keep or harbor within the City any dog or cat that disturbs the peace by habitually howling, barking, whining, meowing or making other disagreeable noise. Any person wishing to file a complaint shall be required to give his name and address and sign a complaint.
11.0210 Nuisance – When
Any licensed dog or cat, any dog or cat running at large, any dog or cat disturbing the peace, or any dog or cat molesting passers by, chasing vehicles or trespassing upon private property is hereby declared to be a nuisance.
11.0211 Penalty
Any person violating any provision of this article where no penalty is specifically attached shall be guilty of an infraction and be fined in an amount not to exceed five hundred dollars ($500.00).
179
CHAPTER TWELVE
PUBLIC NUISANCES
ARTICLE 1 - Sanitary Nuisances
12.0101 Residence - When Sewer and Water Required
12.0102 Outhouses - Cesspools - A Nuisance
12.0103 Outhouses - Cesspools - Exceptions
12.0104 Outhouses - Cesspools - Offensive Odors
12.0105 Outhouses - Cesspools - Cleaning of
12.0106 Dead Animals
12.0107 Water Pools - Putrid Substances
ARTICLE 2 - Smoke - Gases
12.0201 Smoke, Dust, Ashes, Cinders, Gases - A Nuisance
12.0202 Smoke, Dust, Ashes, Cinders, Gases - Prohibited
ARTICLE 3 - Radio Interference and Noise Control
12.0301 Radio Interference Prohibited
12.0302 Loud, Disturbing, Unnecessary Noises - Prohibited
ARTICLE 4 - Automobiles - Abandoned Property
12.0401 Definitions
12.0402 Removal
12.0403 Notice to Owner of Abandoned Vehicle
12.0404 Sale
12.0405 When Proceeds May be Claimed
ARTICLE 4.1 – Property Found on Private Lands
12.04.101 Definitions
12.04.102 Storage of Junk, Junk Automobiles – Contrary to Public Health and Safety-Nuisance
12.04.103 Unlawful to Store or Accumulate Junk, Junk Automobiles, etc.
12.04.104 Unlawful to Dismantle Automobile Except on Business Premises
12.04.105 Unlawful to Maintain Blighted Structure
12.04.106 Unlawful to Store Building Materials Except on Business Premises
12.04.107 Police Department May Remove Junk Automobiles or Abandoned Vehicles
12.04.108 Opportunity for Hearing
12.04.109 Disposition of Junk Automobiles or Abandoned Vehicles Determined to be of No Value
180
12.04.110 Abatement without Prior Notice
12.04.111 Other Remedies: Harboring a Nuisance
12.04.112 Penalty Section
ARTICLE 5 - Noxious Weeds
12.0501 Definition
12.0502 Weeds Prohibited
12.0503 Notice to Destroy
12.0504 Action Upon Non-Compliance
12.0505 Cost Assessed to Property
181
CHAPTER TWELVE
PUBLIC NUISANCES
ARTICLE 1 – Sanitary Nuisances
12.0101 Residence – When Sewer and Water Required
It shall be unlawful for any person to use or occupy or permit to be used or occupied for residence purposes, any premises or building within the corporate limits of this City without first making or causing to be made proper connections with the City’s sewer and water facilities and mains.
The term “proper connections” when used in this section shall be construed to mean connections with the water mains and sanitary sewers which are equipped and furnished with proper valves and fittings so as to enable such water connections to be used at all times. Sanitary toilets and drains and such equipment shall at all times be kept in repair and in a manner so as to make them available for household use and in condition to be used at all seasons of the year.
12.0102 Outhouses – Cesspools – A Nuisance
The use, construction, maintenance, building or erection of any outhouse, privy, vault or cesspool within this City is hereby declared to be a nuisance and a menace to public health, when in violation of Section 12.0101.
12.0103 Outhouses – Cesspools – Exceptions
1. Private sewage systems and private water supplies may be constructed to serve new buildings to be built in areas not included in Section 12.0101, providing such lot area complies with any zoning requirements.
2. Private sewage systems and private water systems may be installed in existing buildings in areas not included in Section 12.0101.
3. Each private sewage system or private water supply hereafter altered or constructed shall conform to the State Health Department Standards.
12.0104 Outhouses – Cesspools – Offensive Odors
It shall be unlawful for the owner or occupant of any lot or piece of ground within the corporate limits of this City to permit any private sewer system to emit
182
any offensive odors or to become dangerous or injurious to public health or offensive to sense of smell of the people of the City. Any private sewer system emitting such odor is hereby declared to be a nuisance and a menace to the public health of the City.
12.0105 Outhouses – Cesspools – Cleaning of
In the cleaning of private septic tanks and sewage systems the contents thereof shall be removed in containers fitted so as to prevent the escape of odors or materials therefrom and disposed of in a manner approved by the City health officer.
The pumping of a private sewage system on the surface of the ground or hauling contents thereof in such a manner as to allow the material to spill on the ground, street or public way is hereby declared to be a public nuisance.
12.0106 Dead Animals
Any person who owned or had possession or control of a dead animal prior to its death shall remove or cause the same to be removed within five (5) hours from the time the animal dies and have the same buried or disposed of in some other sanitary way approved by the City health officer. Any dead animal remaining in any street, alley or other public place in this City, or in any private premises within this City, for more than five (5) hours after the animal shall have died, is hereby declared to be a nuisance. Any person allowing any animal which that person controlled or possessed, prior to its death, to remain in any street, alley or public place, or on any private premises within the City for more than five (5) hours after its death shall be guilty of a violation of this article.
12.0107 Water Pools – Putrid Substances
It shall be unlawful for the owner or occupant of any parcel of ground in this City to permit water or putrid substance whether animal or vegetative to accumulate or stand so as to cause an offensive odor to be emitted therefrom or to become injurious or dangerous to the health of the neighborhood. Any pool of water and any putrid substance permitted to become offensive or injurious to the public health are hereby declared to be a public nuisance.
ARTICLE 2 – Smoke – Gases
12.0201 Smoke, Dust, Ashes, Cinders, Gases – A Nuisance
The emission of dense smoke, ash, dust, cinders or noxious gases from any machine, contrivance or from the smoke stack or chimney of any building or premises in such quantities as to cause injury or detriment to any person or persons or to the public, or to endanger the comfort, health or safety of any
183
person or persons, or in such manner as to cause or tend to cause damage or injury to property, is hereby declared to be a public nuisance.
12.0202 Smoke, Dust, Ashes, Cinders, Gases – Prohibited
No person, persons, association or corporation shall cause, permit or allow the escape from any smoke stack or chimney into the open air, of such quantities of dense smoke, ash, dust, soot, cinders, acid or other fumes, dirt, or other material, or noxious gases, in such place or manner as to cause injury, detriment or nuisance to any person or persons, or to the public, or to endanger the comfort, health or safety to any such person or persons, or the public, or in such manner as to cause or have a natural tendency to cause injury or damage to business or property.
ARTICLE 3 – Radio Interference and Noise Control
12.0301 Radio Interference Prohibited
It shall be unlawful for any person knowingly to maintain, use, operate or cause to be operated within this City, any machine, device, appliance, equipment or apparatus of any kind whatsoever, the operation of which shall cause reasonably preventable electrical interference with radio reception within the City limits. The maintenance, use or operation within the City of any machine, device, appliance, equipment or apparatus of any kind so as to interfere with radio reception in violation hereof is hereby declared a public nuisance.
12.0302 Loud, Disturbing, Unnecessary Noises – Prohibited
The making, creating or maintenance of loud, unnatural or unusual and disturbing noises are a detriment to public health, comfort, convenience, safety and welfare, and are hereby declared to be unlawful and a public nuisance. The following acts, among others, are declared to be prohibited noises in violation of this section, but such enumeration is not exclusive:
1. The sounding of horns or signaling devices on any motor vehicle or motorcycle on any street or public place except as a danger warning.
2. The using, operating or permitting to be played, used or operated, any radio, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants. The operation of any such set, instrument, phonograph, machine or device in such a manner as to be plainly audible at a distance of fifty (50) feet from the building, structure or
184
vehicle in which it is located shall be prima facie evidence of a violation of this section.
3. Yelling, shouting, hooting, whistling or singing on the public streets, particularly between the hours of 11:00 PM and 7:00 AM, or at any time or place so as to annoy or disturb the quiet, comfort or repose of persons in any office, or in any dwelling, hotel or other type of residence, or of any persons in the vicinity.
ARTICLE 4 - Automobiles – Abandoned Property
12.0401 Definitions
a. “Abandoned personal property” shall be any personal property, which has been located on a street, alley, other public way, or parking lot of the city or which has been removed from such a location to a public parking lot, city storage or city building by proper authorities to prevent a nuisance, to safeguard the property or to avoid obstruction of the public ways.
b. “Abandoned motor vehicle” means a motor vehicle, as defined in NDCC Section 39-01-01, that has remained for a period of more than forty-eight (48) hours on public property illegally or lacking vital component parts or has remained for a period more than forty-eight (48) hours on private property without consent of the person in control of such property or in an inoperable condition such that it has no substantial potential for use consistent with its functions unless it is kept in an enclosed garage or storage building.
12.0402 Removal
After a period of forty-eight (48) hours shall have elapsed from the commencement of the abandonment, the city shall be entitled to take and store the property.
12.0403 Notice to Owner of Abandoned Vehicle
a. When an abandoned motor vehicle is more than seven (7) model years of age, is lacking vital components parts, and does not display a license plate currently valid in North Dakota, or any other state or foreign country, it is immediately eligible for disposition, and must be disposed of to a scrap iron processor licensed by the State of North Dakota, and is not subject to the notification, reclamation, or title provisions of this ordinance.
185
b. When an abandoned motor vehicle does not fall within subsection (a.) above, the city shall take it into custody and shall further give notice of the taking within ten (10) days.
c. The notice shall set forth the date and place of the taking, the year, make, model, and serial number of the abandoned motor vehicle and the place where the vehicle is being held. The city shall inform the owner and any lienholders or secured parties of their right to reclaim the motor vehicle as specified below in this ordinance, and shall state that failure of the owner or lienholders or secured parties to exercise their right to reclaim the vehicle is deemed a waiver by them of all right, title, and interest in the vehicle and a consent to the sale of the vehicle at a public auction pursuant to this ordinance.
d. The owner, secured parties, or lienholder of an abandoned motor vehicle, which has been taken into custody, have a right to reclaim such vehicle from the city upon payment of all towing and storage charges resulting from taking the vehicle into custody provided said vehicle is reclaimed within fifteen (15) days after the notice specified in Section 3 (c.).
12.0404 Sale
An abandoned vehicle, not more than seven (7) model years of age, taken into custody and not reclaimed pursuant to the provisions of this ordinance must be sold to the highest bidder at public auction following a reasonable public notice thereof. One publication of said sale at least ten (10) days prior to the sale shall be deemed reasonable public notice. The purchaser must be given a receipt and a form prescribed by the State of North Dakota, which shall be sufficient title to dispose of the vehicle. The receipt also entitles the purchaser to register the vehicle and receive a certificate of title free and clear of all liens and claims of ownership. License plates displayed on an abandoned vehicle must be removed and destroyed prior to the purchaser taking possession of the vehicle.
12.0405 When Proceeds May be Claimed
From the proceeds of the sale of abandoned motor vehicle, the city shall reimburse itself for the costs of towing, preserving, and storing the vehicle and all notice and publication costs incurred pursuant to this ordinance. Any remainder from the proceeds of sale shall be held for the owner of the vehicle or entitled lienholder or secured parties for ninety (90) days and then shall be deposited in a state treasury of the State of North Dakota as provided in Section 1 of Article IX of the Constitution of North Dakota and credited to the permanent school fund.
186
ARTICLE 4.I - Property Found on Private Lands
12.04.101 Definitions
The following words or terms when used herein shall be deemed to have the meanings set forth below:
a. “Abandoned vehicle” shall include without limitation any vehicle which has remained on private property for a period of forty-eight (48) continuous hours, or more, without consent of the owner or occupant of the property or for a period of forty-eight (48) continuous hours or more, after the consent of the owner or occupant has been revoked.
b. “Antique motor vehicle” – any motor vehicle which is at least 40 years old and licensed as an antique vehicle in accordance with NDCC Section 39-04-10.4.
c. “Blighted structure” shall include without limitation any dwelling, garage, or outbuilding, or any factory, shop, store, warehouse or any other structure or part of a structure, which because of fire, wind, or other natural disaster, or physical deterioration, is no longer habitable as a dwelling, nor useful for the purpose for which it may have been intended.
d. “Building materials” shall include without limitation, lumber, bricks, concrete or cinder blocks, plumbing materials, electric wiring or equipment, heating ducts or equipment, shingles, mortar, concrete or cement, nails, screws, or any other materials used in constructing any structure.
e. “Car enthusiast” – means the owner of one or more specialized vehicles who collects, purchases, acquired, trades, or disposes of special interest vehicles or parts thereof for his own use in order to restore, preserve, and maintain a special interest vehicle.
f. “Collector” – means the owner of one or more specialized vehicles who collects purchases, acquires, trades, or disposes of special interest vehicles or parts thereof for his own use in order to restore, preserve, and maintain a special interest vehicle or antique vehicle.
g. “Inoperative” shall mean a condition of being junked, wrecked, wholly or partially, dismantled, discarded, abandoned, or unable to perform the functions or purposes for which a vehicle was originally constructed.
187
h. “Junk” shall include without limitation parts of machinery or motor vehicles, unused furniture, stoves, refrigerators, or other appliances, remnants of wood, metal, or any other castoff material of any kind, whether or not the same could be put to any reasonable use.
i. “Junk automobiles” shall include without limitation any motor vehicle which is not licensed for use upon the highways of the state for a period in excess of sixty (60) days and shall also include whether licensed or not any motor vehicle which is inoperative for any reason for a period in excess of sixty (60) days, provided that there is excepted form this definition unlicensed but operative vehicles which are kept as a stock in trade of a regularly licensed and established new or used automobile dealer.
j. “Parts car” – means a motor vehicle generally in non-operable condition, which is owned by the collector to furnish parts to restore, preserve, and maintain a special interest vehicle or antique vehicle.
k. “Person” shall include all natural persons, firms, co-partnerships, corporations, and all associations of natural persons, incorporated or unincorporated, whether acting by themselves or by a servant, agent, or employee. All persons who violate any of the provisions of this article, whether as owner, occupant, lessee, agent, servant or employee shall, except as herein otherwise provided, be equally liable as principals.
l. “Special interest vehicle” – means a motor vehicle, whether licensed or unlicensed, which is used for competition or exhibition by a car enthusiast and is either operative or is being diligently worked on by the car enthusiast for the purpose of making the vehicle operative, and also may be a vehicle which is at least 20 years old and which has not been altered or modified from original manufacturer’s specifications and, because of its historic interest, is being preserved by hobbyists.
m. “Trash” and “rubbish” shall include any and all forms of debris not herein otherwise classified.
12.04.102 Storage of Junk, Junk Automobiles – Contrary to Public Health and Safety-Nuisance
It is hereby determined that the storage or accumulation of trash, rubbish, junk, junk automobiles, abandoned vehicles, building materials, and the maintenance of blighted structures upon any private property within the City
188
tends to result in blighted and deteriorated neighborhoods, increase criminal activity, spread vermin and disease and is contrary to the public peace, health, safety and general welfare of the community and therefore constitutes a nuisance.
12.04.103 Unlawful to Store or Accumulate Junk, Junk Automobiles, etc.
It shall be unlawful and is declared a nuisance for any person to store, or permit the storage or accumulation of trash, rubbish, junk, junk automobiles, or abandoned vehicles on any private property in the City except as follows:
a. Within a completely enclosed building.
b. Upon the business premises of a duly licensed junk dealer, junk buyer, dealer in second hand goods or junk gatherer. However, any junk dealer, junk buyer, dealer in used parts or dealer in second hand goods or junk gatherer shall store said items in an area which shall be enclosed in a building or located behind a site fence approved by the city and shall be stored in a manner so as not to create unsightly mess, deterioration of neighborhoods, increase criminal activities, spread vermin and disease or in any way create a situation contrary to the public peace, health, safety, or general welfare.
c. Antique vehicle, special interest vehicle, or parts car owned by a collector or car enthusiast, and covered by a secured automobile cover, specifically designed to cover automobiles, when the antique vehicle, special interest vehicle or parts car are not being used or worked on. Said vehicles shall be located on such an area on the vehicle owner’s property and in a manner so as not to create an unsightly mess, deterioration of neighborhoods, increase criminal activities, spread vermin and disease or in any way create a situation contrary to the public peace, health, safety, or general welfare. Where practicable storage should be out of sight or as near out of sight as possible from a public street or neighbors yard. However, the requirements of this section shall not apply to any special interest vehicle, which is operable and licensed to be operated on North Dakota highways and streets.
12.04.104 Unlawful to Dismantle Automobile Except on Business Premises
It shall be unlawful and is declared a nuisance for any person to dismantle, cut up, remove parts from, or otherwise disassemble any automobile, whether or not the same be a junk automobile, abandoned vehicle or otherwise, or any appliance or machinery, except as set forth below:
189
a. Dismantling may take place in a completely enclosed building;
b. Dismantling may take place upon the business premises of a duly licensed junk dealer, junk buyer, dealer in used auto parts, and dealer in second hand goods or junk gatherer.
c. Automobiles may be dismantled on private property, for purposes of making necessary repairs or improvements to said vehicles provided that said vehicles may not be dismantled for a period of time longer than 120 consecutive days and that said dismantling shall be done in a manner so as not to create an unsightly mess, unreasonable noise, deterioration of neighborhoods, increase criminal activities, spread vermin and disease or in any what way create a situation contrary to the public peace, health, safety, or general welfare. In all cases, vehicles dismantled on private property shall be the property of the owner or resident of the property. Vehicles which have tires or other external parts removed from them shall be covered, as specified in Section 12.04.103 (c) of this ordinance, when such vehicles are not being worked on.
12.04.105 Unlawful to Maintain Blighted Structure
It shall be unlawful and is declared a nuisance for any person to keep or maintain any blighted or vacant structure, dwelling, garage, outbuilding, factory, shop, store, or warehouse unless the same is kept securely locked, the windows kept glazed or neatly boarded up and otherwise protected to prevent entrance thereto by unauthorized persons or unless such structure is in the course of construction in accordance with a valid building permit issued by the City and unless such construction is completed within a reasonable time.
12.04.106 Unlawful to Store Building Materials Except on Business Premises
It shall be unlawful and is declared a nuisance for any person to store or permit the storage or accumulation of building materials on any private property, except as follows:
a. When in a completely enclosed building.
b. When stacked in a neat and orderly manner so as not to be unsightly. No storage method or arrangement shall be allowed if it presents a safety or health hazard or contributes to the spread of vermin or disease.
190
c. When building materials are part of the stock in trade of a business located on the property.
d. When such materials are being used in the construction of a structure on the property in accordance with a valid building permit issued by the city.
12.04.107 Police Department May Remove Junk Automobiles or Abandoned Vehicles
a. The Chief of Police is hereby authorized and empowered, to notify the owner, tenant, occupant, lessee or agent of the owner, of any property within the City to obey and remove junk, junk automobiles, or any other items or materials found accumulated, lying or located on such property (whether private or public). Such notice shall be served personally or delivered by certified mail, return receipt requested, to the last reasonably known address of the owner, tenant, occupant, lessee or agent of the owner, if such address is reasonably ascertainable or shall be posted on the premises at least twenty (20) days prior to abatement of the nuisance. The notice shall specify the legal description of the premises and shall set forth, if possible, the street address of the premises. It shall include an explanation of the right to a hearing on the necessity for the abatement, which is provided in this ordinance.
b. Upon the failure, neglect, or refusal of the owner, tenant, occupant, lessee or agent of the owner, so notified to abate and remove the nuisance caused by the accumulation of junk, junk automobiles, or other nuisances as specified in this ordinance, the Chief of Police is hereby authorized and empowered to pay for the abatement and removal of said nuisance. If within twenty (20) days after the date of any letter containing such notice is returned to the City because of inability to make delivery thereof, provided the same was properly addressed to the last known address of such owner, occupant, or agent of the owner, and if the Chief of Police is unable to contact such owner, occupant or agent by telephone upon reasonable effort, the Chief of Police may also pay for the abatement of the nuisance or order its removal by the City. In order to abate said nuisance, the Chief of Police or his agent is authorized to enter upon the premises described in such notice and to take whatever steps as might be reasonable required to abate the nuisance and such actions, if reasonable in nature and undertaken in good faith, said entry shall not constitute a trespass or conversion.
191
c. The costs of abatement or removal of the nuisance which are incurred by the City shall be certified by the Chief of Police to the City Auditor for assessment against property, provided however, that if the property has any value it may be disposed of as previously provided in this ordinance and funds retained shall first be applied to expenses, as specified in this ordinance, and then shall be returned to the owner of the property, if the owner can be located within ninety (90) days. If the owner cannot be located, the funds shall be returned to the treasury of the City of Center.
d. Such removal by the police department shall not excuse or relieve any person of the obligation imposed by this ordinance to keep his property free from storage or accumulation of junk automobiles or abandoned vehicles, or parts of junk automobiles or abandoned vehicles, or parts of either, or from any other violation of this ordinance, nor form the penalties for violation thereof.
12.04.108 Opportunity for Hearing
Any owner, tenant, occupant, lessee or agent of owner, of any property within the City, who has been ordered to remove junk, junk automobiles, or other items or materials found accumulated, or blighted structures, and in violation of this ordinance may seek a hearing before the Municipal Judge of the City of Center for the purpose of making a determination whether or not the items ordered to be removed by the Chief of Police are in violation of this ordinance. Any person desiring said hearing shall notify the Municipal Judge, in writing, within twenty (20) days of the receipt of or posting of the required notice and shall be given an opportunity to appear before the Municipal Judge within thirty (30) days after said notification of a desire for hearing. The City shall have the burden of proving by a preponderance of the evidence that the conditions, of which it complains, constitute a nuisance as set forth in this ordinance. The Municipal Judge shall either find for the owner of the property, in which case no further action may be taken by the City without the issuance of another notice, pursuant to this ordinance, which shall be issued only in the event of a material change in circumstances, or the Municipal Judge shall find for the City, in which case the owner shall have an additional ten (10) days from the date of service upon him by mail or in person of a copy of the Municipal Judge’s decision in which to abate the nuisance. If the owner fails, neglects, or refuses to abate the nuisance within that period of time, then the Chief of Police may proceed to enter upon the property and to abate the nuisance and such actions, if reasonable in nature and undertaken in good faith, shall not constitute a trespass or conversion.
192
12.04.109 Disposition of Junk Automobiles or Abandoned Vehicles Determined to be of No Value
Any junk automobile, abandoned vehicle, or part of either removed from unenclosed private property as provided by this ordinance, or coming into the possession of the police department by abandonment on public property in the City, which is determined by the Chief of Police to be of no value other than as scrap metal shall be disposed of by the City in such a manner as to eliminate the unsightly accumulation of such worthless hulks and the hazards to public health attendant thereto with the least practicable delay.
12.04.110 Abatement Without Prior Notice
In the event a nuisance as defined herein shall, in the opinion of the Chief of Police constituted immediate and serious danger to the health of any person, or shall constitute immediate and serious danger to private or public property, the City may, without prior notice to the owner of the premises immediate enter upon the premises and take whatever steps are required to abate the nuisance. If such actions are reasonable in nature and undertaken in good faith, such action shall note constitute trespass or conversion. Any attempt by the City to give the owner prior notice shall not constitute a waiver of the right under this section to act without prior notice.
12.04.111 Other Remedies: Harboring a Nuisance
The provisions of this ordinance shall not constitute the exclusive remedy of the City of Center to abate nuisances. The City reserves the right to proceed in any court of competent jurisdiction to obtain an injunction requiring abatement of the nuisance and such remedy may be asserted without regard to the notice requirements of this ordinance and the provisions for administrative relief set forth herein. Moreover, the harboring or maintenance of a nuisance shall constitute an offense punishable under this ordinance as set forth below.
12.04.112 Penalty Section
Any person who violates or fails to comply with any provision of this Ordinance [Ordinance #55] is guilty of an infraction and shall be charged with an infraction and subject to a fine of not more than five hundred dollars ($500.00).
ARTICLE 5 – Noxious Weeds
12.0501 Definition
Whenever used in this ordinance, the term “noxious weeds” shall mean and include all weeds of the kind known as Canada Thistle, sow thistle,
193
dandelions, quack grass, leafy spurge, field bindweed, Russian knapweed, hoary cress, dodder, or any similar unwanted vegetation over eight inches in height.
12.0502 Weeds Prohibited
No owner of any lot, place or area within the City or the agent of such owner, shall permit on such lot, place or area and the one-half of any road or street lying next to the lands or boulevards abutting thereon, noxious weeds or other deleterious, unhealthful growths.
12.0503 Notice to Destroy
The City health officer is hereby authorized and empowered to notify in writing the owner of any lot, place, or area within the City or the agent of such owner, to cut, destroy, and/or remove any noxious weeds found growing, lying, or located on such owner’s property or upon the one-half of any road or street lying next to the lands or boulevards abutting thereon. The notice shall be by certified mail addressed to said owner or agent of said owner at their last known address and shall give such owner or agent a minimum of five days to cut or destroy the noxious weeds.
12.0504 Action Upon Non-Compliance
Upon the failure, neglect, or refusal of any owner or agent to cut, destroy and/or remove noxious weeds growing, lying or located upon the owner’s property or upon the one-half of any road or street lying next to the lands or boulevards abutting thereon, after receipt of the written notice provided for in 12.0503 or within five days after the date of such notice in the event the same is returned to the City Post Office because of inability to make delivery thereof, provided the same was properly addressed to the last known address of such owner or agent, the health officer is hereby authorized and empowered to pay for the cutting, destroying, and/or removal of such noxious weeds or to order their removal by the City.
12.0505 Cost Assessed to Property
When the City has effected the removal of such noxious weeds or has paid for their removal, the actual cost thereof, if not paid by the owner prior thereto, shall be charged and assessed against the property upon which the noxious weeds were cut or destroyed. An assessment list showing the lots or tracts to be assessed with the cost against each lot or tract shall be prepared as are other special assessment lists and shall be approved by the City Council. Such assessments shall be subject to the same procedure for certification to the County Auditor, payment and collection as are other special assessments under state law.
194
CHAPTER THIRTEEN
OFFENSES
ARTICLE 1 - In General
13.0101 Criminal Contempt
13.0102 Hindering Proceedings by Disorderly Conduct
13.0103 Fleeing or Attempting to Elude a Police Officer
13.0104 Interference with Officers
13.0105 False Alarms or False Reports
ARTICLE 2 - Offenses Against Persons
13.0201 Simple Assault
13.0202 Sexual Assault
13.0203 Harassment
ARTICLE 3 - Offenses Against Property
13.0301 Criminal Mischief - Penalty
13.0302 Tampering with or Damaging a Public Service
13.0303 Consent as a Defense and Definition of “of another” for Criminal Mischief or Tampering with or Damaging a Public Service
13.0304 Criminal Trespass
13.0305 Consolidated Theft Offenses
13.0306 Theft of Property
13.0307 Theft of Services
13.0308 Theft of Property Lost, Mislaid or Delivered by Mistake
13.0309 Thefts Punishable Under City Ordinances
13.0310 Defrauding Secured Creditors - Penalty
13.0311 Retail Theft - Shoplifting
13.0312 Defenses and Proof as to Theft and Related Offenses
13.0313 Definitions
13.0314 Making or Uttering Slugs
ARTICLE 4 - Offenses Against Public Order, Health, Safety and Sensibilities
13.0401 Engaging in a Riot
13.0402 Disobedience of Public Safety Orders Under Riot Conditions
13.0403 Disorderly Conduct
13.0404 Defense when Conduct Consists of Constitutionally Protected Activity
13.0405 Gambling
13.0406 Prostitution
13.0407 Business or Labor on Sunday
195
13.0408 Cruelty to Animals
13.0409 Persons Less than Twenty-One (21) Years Prohibited - Exceptions
13.0410 Misrepresentation of Age - Obligations of Licensee
13.0411 Bottle Clubs Prohibited
13.0412 Public Intoxication - Assistance - Medical Care
13.0413 No Prosecution for Intoxication
13.0414 Objectionable Materials or Performance - Display to Minors - Definitions - Penalty
13.0415 Curfew, General Regulations - Penalty
ARTICLE 5 - Sentencing
13.0501 Classification of Offenses
13.0502 Sentencing Alternatives
13.0503 Procedure for Trial of Infraction
13.0504 Special Sanction for Organizations
13.0505 Factors to be Considered in Sentencing
13.0506 Imposition of Fine - Response to Non-payment
13.0507 Incidents of Probation
13.0508 Conditions of Probation - Revocation
13.0509 Restitution or Reparation - Procedures
13.0510 Merger of Sentences - Sentencing for Multiple Offenses
ARTICLE 6 - Penalties
196
CHAPTER THIRTEEN
OFFENSES
ARTICLE 1 – In General
13.0101 Criminal Contempt
1. The Municipal Court has power to punish for contempt of its authority for the following offenses:
a. Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
b. Misbehavior of any of its officers in their official transactions; or
c. Disobedience or resistance to its lawful writ, process, order, rule, decree or command.
2. A criminal contempt proceeding under this section is not a bar to subsequent prosecution for a specific offense if the court certifies in the judgment of conviction of criminal contempt, or the order terminating the proceeding without acquittal or dismissal, that a summary criminal contempt proceeding was necessary to prevent repetition of misbehavior disruptive of an ongoing proceeding and that subsequent prosecution as a specific offense is warranted.
3. This section shall not be construed to deprive a court of its power, by civil contempt proceedings, to compel compliance with its lawful writ, process, order, rule, decree or command or to compensate a complainant for losses sustained by reason of disobedience or resistance thereto, in accordance with the prevailing usage’s of law and equity, including the power of detention.
13.0102 Hindering Proceedings by Disorderly Conduct
A person is guilty of an offense if the person recklessly or intentionally hinders an official city proceeding by noise or violent or tumultuous behavior or disturbance.
13.0103 Fleeing or Attempting to Elude a Police Officer
Any driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given a visual or audible signal to bring the vehicle to a stop, is
197
guilty of a class B misdemeanor. A signal complies with the section if the signal is perceptible to the driver and the police officer giving such signal is in uniform, prominently displaying the officer’s badge of office, and the vehicle is appropriately marked showing it to be an official police vehicle. (Source: NDCC Section 39-10-71).
13.0104 Interference with Officers
No person in the City shall resist any police or fire officer, any member of the police or fire departments, or any person duly empowered with police or fire authority, while in the discharge or apparent discharge of duty, or in any way interfere with or hinder in the discharge of duty.
13.0105 False Alarms or False Reports
No person in the City shall intentionally make, turn in, or give a false alarm of fire, or of need for police or ambulance assistance, or aid or abet in the commission of such act. No person in the City shall make to, or file with, the police department of the City any false, misleading or unfounded statement or report concerning the commission or alleged commission of any crime occurring in the City.
ARTICLE 2 – Offenses Against Persons
13.0201 Simple Assault
1. A person is guilty of an offense if that person:
a. Willfully causes bodily injury to another human being; or
b. Negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.
2. Consent to the conduct causing bodily injury by all persons injured by the conduct is a defense if:
a. Neither the injury inflicted nor the injury threatened is such as to jeopardize life or seriously impair health;
b. The conduct and the injury are reasonable foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or
198
c. The conduct and the injury are reasonable foreseeable hazards of an occupation or profession or of medical or scientific experimentation conducted by recognized methods and the persons subjected to such conduct or injury, having been made aware of the risks involved, consent to the performance of the conduct or the infliction of the injury.
3. Assent does not constitute consent, within the meaning of this ordinance, if:
a. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense and such incompetence is manifest or known to the actor;
b. It is given by a person who by reason of youth, mental disease or defect, or intoxication, is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute the offense; or
c. It is induced by force, duress or deception. (Source: NDCC Sections 12.1-17-01,08)
13.0202 Sexual Assault
1. A person who knowingly has sexual contact with another person, or who causes another person to have sexual contact with that person, is guilty of an offense if:
a. That person knows or has reasonable cause to believe that the contact is offensive to the other person;
b. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders that other person incapable of understanding the nature of that other persons conduct;
c. That person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct, by administering or employing without the victim’s knowledge, intoxicants, a controlled substance as defined in NDCC Chapter 19-03.1, or other means for the purpose of preventing resistance;
199
d. The other person is in official custody or detained in a hospital, prison or other institution and the actor has supervisory or disciplinary authority over that other person;
e. The other person is a minor, fifteen years of age or older, and the actor is the other person’s parent, guardian, or is otherwise responsible for general supervision of the other person’s welfare; or
f. The other person is a minor, fifteen years of age or older, and the actor is an adult. (Source: NDCC Section 12.1-20-07).
13.0203 Harassment
A person is guilty of an offense if, with intent to frighten or harass another, the person:
a. Makes a telephone call anonymously or in offensively coarse language;
b. Makes repeated telephone calls, whether or not a conversation ensues, with no purpose of legitimate communication; or
c. Communicates a falsehood by telephone and causes mental anguish.
(Source: NDCC Section 12.1-17-07(1) (b), (c), and (d).)
ARTICLE 3 – Offenses Against Property
Division 1. Property Destruction and Criminal Intrusion
13.0301 Criminal Mischief – Penalty
A person is guilty of an offense if that person:
a. Willfully tampers with tangible property of another so as to endanger person or property; or
b. Willfully damages tangible property of another.
Conduct is punishable as criminal mischief under this ordinance when pecuniary loss, if intentionally caused, is not in excess of one hundred dollars ($100.00); if recklessly caused, is not in excess of two thousand dollars
200
($2,000.00); and if the damages to tangible property of another are not by means of an explosive or a destructive device.
c. The penalty for the offense of criminal mischief may not exceed a fine of one thousand dollars ($1,000.00), imprisonment from thirty (30) days, or both such fine and imprisonment. (Source: NDCC Sections 12.1-21-05 and 40-05-06)
13.0302 Tampering with or Damaging a Public Service
A person is guilty of an offense if that person causes a substantial interruption or impairment of a public communication, transportation, supply of water, gas, power or other public service by:
a. Tampering with or damaging the tangible property of another;
b. Incapacitating an operator of such service; or
c. Negligently damaging the tangible property of another by fire, explosive or other dangerous means. (Source: NDCC Section 12.1-21-06).
13.0303 Consent as a Defense and Definition of “of another” for Criminal
Mischief or Tampering with or Damaging a Public Service
For prosecution of criminal mischief under Section 13.0301 or tampering with or damaging a public service under Section 13.0302:
1. Whenever it is an element of the offense that the property is of another, it is a defense to a prosecution under those sections that the other has consented to the actor’s conduct with respect to the property.
2. Property is that “of another” if anyone other than the actor has a possessory or proprietary interest therein. (Source: NDCC Section 12.1-21-07 and 08(2)).
13.0304 Criminal Trespass
A person is guilty of an offense if, knowing that the person is not licensed or privileged to do so, that person, enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the person in charge of the premises or other authorized person or by posting in a manner reasonably likely to come to the attention of intruders. (Source: NDCC Section 12.1-22-03 (3)).
201
Division 2. Theft and Related Offenses
13.0305 Consolidated Theft Offenses
1. Conduct denominated theft in Sections 13.0306 to 13.0308 constitutes a single offense designed to include the separate offenses heretofore known as larceny, stealing, purloining, embezzlement, obtaining money or property by false pretenses, extortion, blackmail, fraudulent conversion, receiving stolen property, misappropriation of public funds, swindling and the like.
2. A charge of theft under Sections 13.0306 to 13.0308, which fairly apprises the defendant of the nature of the charges against the defendant, shall not be deemed insufficient because it fails to specify a particular category of theft. The defendant may be found guilty of theft under such charge if the defendant’s conduct falls under Sections 13.0306 to 13.0308, so long as the conduct proved is sufficiently related to the conduct charged that the accused is not unfairly surprised by the case that must be met. (Source: NDCC Section 12.1-23-01).
13.0306 Theft of Property
A person is guilty of theft if that person:
a. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof;
b. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; or
c. Knowingly receives, retains or disposes of property of another which has been stolen, with intent to deprive the owner thereof. (Source: NDCC Section 12.1-23-02).
13.0307 Theft of Services
A person is guilty of theft if:
a. The person intentionally obtains services, known by the person to be available only for compensation, by deception, threat, false token or other means to avoid payment for the services; or
202
b. Having control over the disposition of services of another to which the person is not entitled, the person knowingly diverts those services to his own benefit or to the benefit of another not entitled thereto.
Where compensation for services is ordinarily paid immediately upon their rendition, as in the case of hotels, restaurants, and comparable establishments, absconding without payment or making provision to pay is prima facie evidence that the services were obtained by deception. (Source: NDCC Section 12.1-23-03).
13.0308 Theft of Property Lost, Mislaid or Delivered by Mistake
A person is guilty of theft if the person:
a. Retains of disposes of property of another when that person knows it has been lost or mislaid; or
b. Retains or disposes of property of another when that person knows it has been delivered under a mistake as to the identity of the recipient or as to the nature or amount of the property; and with intent to deprive the owner of it, he fails to take readily available and reasonable measures to restore the property of a person entitled to have it. (Source: NDCC Section 12.1-23-04).
13.0309 Thefts Punishable Under City Ordinances
Theft under Sections 13.0306 to 13.0308 may be punished as an offense against the City ordinances if the highest value by any reasonable standard, regardless of the actor’s knowledge of such value, of the property or services which were stolen by the actor, or which the actor believed that he was stealing, or which the actor could reasonably have anticipated to have been the property or services involved, does not exceed two hundred fifty dollars ($250.00) and if:
a. The theft was not committed by threat;
b. The theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft;
c. The defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties;
d. The property stolen is not a firearm, ammunition, explosive or destructive device, or an automobile, aircraft or other motor-propelled vehicle;
203
e. The property does not consist of any government file, record, document or other government paper stolen from any government office or from any public servant;
f. The defendant is not in the business of buying or selling stolen property and he does not receive, retain or dispose of the property in the course of that business;
g. The property stolen does not consist of any implement, paper or other thing uniquely associated with the preparation of any money, stamp, bond or other document, instrument or obligation of the State of North Dakota;
h. The property stolen does not consist of livestock taken from the premises of the owner;
i. The property stolen does not consist of a key or other implement uniquely suited to provide access to property the theft of which would be a felony or was not stolen to gain such access.
j. The property stolen is not a card, plate, or other credit device existing for the purpose of obtaining money property, labor, or services on credit, or is a debit card, electronic fund transfer card, code or other means of access to an account for the purpose of initiating electronic fund transfers. (Source: NDCC Section 12.1-23-05).
13.0310 Defrauding Secured Creditors – Penalty
A person is guilty of an offense if he destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest with intent to prevent collection of the debt represented by the security interest or if he makes false statements at the time of sale as to the existence of security interests.
13.0311 Retail Theft – Shoplifting
1. Presumption. Any person concealing upon that person’s person or among that person’s belongings, or causing to be concealed upon the person or among the belongings of another, unpurchased merchandise displayed, held, offered or stored for sale in a retail mercantile establishment and removing it to a point beyond the last station for receiving payments in that retail mercantile establishment shall be prima facie presumed to have so concealed such merchandise with the intention of permanently depriving the
204
merchant of possession or of the full retail value of such merchandise.
2. Detention of Suspect – Procedure. Any peace officer or merchant who reasonably believes that a person has committed, or is in the process of committing theft may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:
a. To require the person to identify himself;
b. To verify such identification;
c. To determine whether such person has in the person’s possession unpurchased merchandise and, if so, to recover such merchandise;
d. To inform a peace officer of the detention of the person and surrender custody of that person to a peace officer;
e. In the case of a minor, to inform a peace officer, the parents, guardian or other private person interested in the welfare of that minor of this detention and to surrender custody of said minor to the person informed.
3. Definitions. As used in this section, unless the context requires otherwise:
a. An item is “concealed” within the meaning of this section if, even though there is some notice of its presence, the item itself is not visible through ordinary observation.
b. “Full retail value” means the merchant’s stated or advertised price of the merchandise.
c. “Merchandise” means any item of tangible personal property and specifically includes shopping carts.
d. “Merchant” means an owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, franchise or independent contractor or such owner or operator.
e. “Person” means any natural person or individual.
205
f. “Premises of a retail mercantile establishment” includes, but is not limited to, the retail mercantile establishment, any common use areas in shopping centers, and all parking areas set aside by a merchant, or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of said retail mercantile establishment.
g. “Retail mercantile establishment” means any place where merchandise is displayed, held, offered or stored for sale to the public.
h. “Shopping cart” means those push carts of the type or types which are commonly provided by grocery stores, drugstores or other retail mercantile establishments for the use of the public in transporting commodities in stores and markets and, incidentally, from the stores to a place outside the store.
4. Theft of unpurchased merchandise, displayed, held, offered or stored for sale in a mercantile establishment from that establishment when open for business is “shoplifting” for which the offender may be assessed a penalty upon conviction not exceeding one thousand dollars ($100.00), imprisonment of thirty (30) days, or both such fine and imprisonment. (Source: NDCC Sections 51-21-01, 51-21-02, 51-21-03 and 40-05-06).
13.0312 Defenses and Proof as to Theft and Related Offenses
1. It is a defense to a prosecution under this article that:
a. The actor honestly believed that he had a claim to the property or services involved which he was entitled to assert in the manner which forms the basis for the charge against him; or
b. The victim is the actor’s spouse, but only when the property involved constitutes household or personal effects or other property normally accessible to both spouses and the parties involved are living together. The term ‘spouse’, as used in this section includes persons living together as husband and wife.
2. It does not constitute a defense to a prosecution for conducts constituting an offense in violation of this article that:
a. Stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed;
206
b. A facility or an opportunity to engage in such conduct, including offering for sale property not stolen as if it were stolen, was provided; or
c. Mere solicitation that would not induce an ordinary law-abiding person to engage in such conduct was made by a law enforcement officer to gain evidence against a person predisposed to engage in such conduct.
3. It is a prima facie case of theft under this article if it is shown that a public servant or an officer, director, agent, employee of, or a person connected in any capacity with a financial institution has failed to pay or account upon lawful demand for money or property entrusted to him as part of his official duties or if an audit reveals a shortage or falsification of his accounts.
a. Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
b. Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business, or without the usual induce of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen. (Source: NDCC Section 12.1-23-09).
13.0313 Definitions
In this article:
1. “Dealer in property” means a person who buys or sells property as a business.
2. “Deception” means:
a. Creating or reinforcing a false impression, including false impressions as to fact, law, status, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not substantially perform the promise unless it is part of a continuing scheme to defraud; or
207
b. Preventing another from acquiring information which would affect his judgment of a transaction; or
c. Failing to correct a false impression which the actor previously created or reinforced, or which he knows to be influencing another to whom he stands in fiduciary or confidential relationship; or
d. Failing to correct an impression which the actor previously created or reinforced and which the actor knows to have become false due to subsequent events; or
e. Failing to disclose a lien, adverse claim, or other impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained or in order to continue to deprive another of his property, whether such impediment is or is not valid, or is or is not a matter of official record; or
f. Using a credit card, charge plate or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer (i.) where such instrument has been stolen, forged, revoked or canceled, or where for any other reason its use by the actor is unauthorized, and (ii.) where the actor does not have the intention and ability to meet all obligations to the issuer arising out of his use of the instrument; or
g. Any other scheme to defraud. The term “deception” does not, however, include falsifications as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. “Puffing” means an exaggerated commendation of wares in communications addressed to the public or to a class or group.
3. “Deprive” means:
a. To withhold property or to cause it to be withheld either permanently or under such circumstances that a major portion of its economic value, or its use and benefit, has, in fact, been appropriated; or
208
b. To withhold property or to cause it to be withheld with the intent to restore it only upon the payment of a reward or other compensation; or
c. To dispose of property or use it or transfer any interest in it under circumstances that make its restoration, in fact, unlikely.
4. “Fiduciary” means a trustee, guardian, executor, administrator, receiver or any other person acting in a fiduciary capacity, or any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.
5. “Financial institution” means a bank, insurance company, credit union, safety deposit company, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
6. “Obtain” means:
a. In relation to property, to bring about a transfer or purported transfer of an interest in the property, whether to the actor or another; or
b. In relation to services, to secure performance thereof.
7. “Property” means any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to, or found in land and documents although the rights represented thereby have no physical location), contract right, chose-in-action, interest in or claim to wealth, credit or any other article or thing of value of any kind. “Property” also means real property, the location of which cannot be moved if the offense involves transfer or attempted transfer of an interest in the property.
8. “Property of another” means property in which a person other than the actor or in which a government has an interest without consent, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person or government might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another that has a security interest therein, even if legal title is in the creditor pursuant to a conditional
209
sales contract or other security agreement. “Owner” means any person or a government with an interest in property such that it is “property of another” as far as the actor is concerned.
9. “Receiving,” means acquiring possession, control or title, or lending on the security of the property.
10. “Services” means labor, professional service, transportation, telephone, mail or other public service, gas, electricity and other public utility services, accommodations in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other property.
11. “Stolen” means property which has been the subject of theft or robbery or a vehicle which is received from a person who is then in violation of NDCC Section 12.1-23-06.
12. “Threat” means an expressed purpose, however communicated, to:
a. Cause bodily injury in the future to the person threatened or to any other person; or
b. Cause damage to property; or
c. Subject the person threatened or any other person to physical confinement or restraint; or
d. Engage in other conduct constituting a crime; or
e. Accuse anyone of a crime; or
f. Expose a secret or publicize an asserted fact, whether true or false, tending to subject a person living or deceased, to hatred, contempt or ridicule or to impair another’s credit or business repute; or
g. Reveal any information sought to be concealed by the person threatened; or
h. Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or
i. Take or withhold official action as a public servant, or cause a public servant to take or withhold official action; or
210
j. Bring about or continue to strike, boycott or other similar collective action to obtain property or deprive another of his property which is not demanded or received for the benefit of the group which the actor purports to represent; or
k. Cause anyone to be dismissed from his employment, unless the property is demanded or obtained for lawful union purposes; or
l. Do any other act which would not in itself substantially benefit the actor or a group he represents but which is calculated to harm another person in a substantial manner with respect to his health, safety, business, employment, calling, career, financial condition, reputation or personal relationship. Upon a charge of theft, the receipt of property in consideration for taking or withholding official action shall be deemed to be theft by threat regardless of whether the owner voluntarily parted with his property or he initiated the scheme.
13. “Traffic” means:
a. To sell, transfer, distribute, dispense or otherwise dispose of to another person; or
b. To buy, receive, possess or obtain control of, with intent to sell, transfer, distribute, dispense or otherwise dispose of to another person. (Source: NDCC Section 12.1-23-10)
13.0314 Making or Uttering Slugs
1. A person is guilty of an offense if that person makes or utters a slug or slugs which do not exceed fifty dollars ($50.00) in value with intent to deprive a supplier of property or service sold or offered by means of a coin machine or with knowledge that he is facilitating such a deprivation by another person.
2. In this section:
a. “Slug” means a metal, paper or other object which by virtue of its size, shape or any other quality is capable of being inserted, deposited or otherwise used in a coin machine as an improper but effective substitute for a genuine coin, bill or token;
211
b. “Coin machine” means a coin box, turnstile, vending machine, or other mechanical or electronic device or receptacle designed (i.) to receive a coin or bill of a certain denomination or a token make for the purpose; and (ii.) in return for the insertion or deposit thereof, automatically to offer, provide, assist in providing, or permit the acquisition of property or a public or private service.
c. “Value” of the slugs means the value of the coins, bills or tokens for which they are capable of being substituted.
ARTICLE 4 – Offenses Against Public Order, Health, Safety and Sensibilities
Division 1. Riot
13.0401 Engaging in a Riot
1. A person is guilty of an offense if that person engages in a riot.
2. “Riot” means a public disturbance involving an assemblage of five (5) or more persons, which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function. (Source: NDCC Sections 12.1-25-01(2) and 12.1-25-03)
13.0402 Disobedience of Public Safety Orders Under Riot Conditions
A person is guilty of an offense if, during a riot as defined in Section 13.0401-(2) or which when one is immediately impending, he disobeys a reasonable public safety order to move, disperse or refrain from specified activities in the immediate vicinity of the riot. A public safety order is an order designated to prevent or control disorder, or promote the safety of persons or property, issued by the senior law enforcement official on the scene. (Source: NDCC Section 12.1-25-04).
Division 2. Disorderly Conduct
13.0403 Disorderly Conduct
1. An individual is guilty of violating the ordinances of this City, if with intent to harass, annoy or alarm another person or in reckless disregard of the fact that another is harassed, annoyed or alarmed by the individual’s behavior, the individual:
212
a. Engages in fighting or in violent, tumultuous or threatening behavior;
b. Makes unreasonable noise;
c. In a public place, uses abusive or obscene language, or makes an obscene gesture;
d. Obstructs vehicular or pedestrian traffic, or the use of a public facility;
e. Persistently follows a person in or about a public place or places;
f. While loitering in a public place for the purpose of soliciting sexual contact, the individual solicits such contact;
g. Creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose; or
h. Engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. (Source: NDCC Section 12.1-31-01).
13.0404 Defense when Conduct Consists of Constitutionally Protected Activity
Ordinance Section 13.0403 does not apply to constitutionally protected activity. If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim, as a matter of law, and, if found valid, shall exclude evidence of the activity. (Source: NDCC Section 12.1-31-01 (2)).
Division 3. Gambling
13.0405 Gambling
1. It shall be an infraction to engage in gambling.
2. “Gambling” means risking any money, credit, deposit or other thing of value for gain, contingent, wholly or partially, upon lot, chance, the operation of gambling apparatus, or the happening or outcome of an event, including an election or sporting event, over which the person taking the risk has no control. Gambling does not include:
213
a. Lawful contests for skill, speed strength or endurance in which awards are made only to entrants or to the owners of entries; or
b. Lawful business transactions or other acts or transactions now or hereafter expressly authorized by law.
3. “Gambling apparatus” means any devise, machine, paraphernalia or equipment that is used or usable in playing phases of any gambling activity, whether that activity consists of gambling between persons, or gambling by a person involving the playing of a machine. Gambling apparatus does not include an amusement game or device as defined in NDCC Section 53-04-01, or an antique “slot” machine twenty-five (25) years old or older which is collected and possessed by a person as a hobby and is not maintained for the business of gambling.
4. This ordinance shall not apply to gambling or games of chance conducted by a licensee under the authority of a valid license issued by the State of North Dakota.
Division 4. Sexual Offenses
13.0406 Prostitution
1. A person is guilty of the offense of prostitution if that person:
a. Is an inmate of a house of prostitution or is otherwise engaged in sexual activity as a business;
b. Solicits another person with the intention of being hired to engage in sexual activity.
2. Testimony of a person against his or her spouse shall be admissible to prove offenses
under this section involving the spouse’s prostitution.
3. In this section:
a. A “house of prostitution” is any place where a person under the control, management or supervision of another regularly carries on prostitution.
b. An “inmate” is a prostitute who acts as such in or through the agency of a house of prostitution.
214
c. “Sexual activity” means sexual act or sexual contact as those terms are defined in NDCC Section 12.1-20-02. (Source: NDCC Sections 12.1-29-03,04,05)
Division 5. Sunday Business or Labor
13.0407 Business or Labor on Sunday
1. Except as otherwise provided in this section, it is a class B misdemeanor for any person between the hours of twelve midnight and twelve noon on Sunday to engage in or conduct business or labor for profit in the usual manner and location, operate a place of business open to the public, or authorize or direct that person’s employees or agents to take action prohibited under this section. This subsection shall not apply to any person who in good faith observes a day other than Sunday as the Sabbath, if that person refrains from engaging in or conducting business or labor for profit and closes the place of business to the public between the hours of twelve midnight and twelve noon on the day observed as the Sabbath. (Source: NDCC Section 12.1-30-01)
2. Except for items sold at hobby shows, craft show, fairs, exhibits, occasional rummage sales including garage sales or other sales for which a sales tax permit is not required, and tourist attractions that derive at least fifty percent (50%) of their annual gross sales from seasonal or tourist customers, the sale or rental of any of the following items between the hours of twelve midnight and twelve noon on Sunday is prohibited:
a. Clothing other than work gloves and infant supplies;
b. Clothing accessories;
c. Wearing apparel other than that sold to a transient traveler under emergency conditions;
d. Footwear;
e. Headwear;
f. Home, business, office or outdoor furniture;
g. Kitchenware;
h. Kitchen utensils;
i. China;
j. Home appliances;
k. Stoves;
l. Refrigerators;
m. Air conditioners;
n. Electric fans;
o. Radios;
215
p. Television sets;
q. Washing machines
r. Dryers;
s. Cameras;
t. Hardware other than emergency plumbing, heating, cooling or electrical repair or replacement parts and equipment;
u. Tools other than manually driven hand tools;
v. Jewelry;
w. Precious or semiprecious stones;
x. Silverware;
y. Watches;
z. Clocks;
aa. Luggage;
bb. Motor vehicles other than the daily rental of vehicles by business whose sole activity is automobile rental;
cc. Musical instrument
dd. The sale of audio or video recordings, records or tapes. Rental of these items is permitted;
ee. Toys other than those customarily sold as novelties or souvenirs;
ff. Mattresses;
gg. Bed coverings;
hh. Household linens;
ii. Floor coverings;
jj. Lamps;
kk. Draperies;
ll. Blinds
mm. Curtains;
nn. Mirrors;
oo. Cloth piece goods;
pp. Lawnmowers;
qq. Sporting or recreational goods other than those sold or rented on the premises where sports or recreational activities are conducted;
rr. Paint and building and lumber supplies. (Source: NDCC Section 12.1-30-02)
3. Subject to the limitations of this subsection and subsection 2, a business specified in this section may operate in the business' usual manner, location, and for its usual purposes. The businesses authorized under this subsection to operate on Sunday include:
a. Restaurants, cafeterias or other prepared food service organizations;
b. Hotels, motels and other lodging facilities;
216
c. Hospitals and nursing homes, including the sale of giftware on the premises;
d. Dispensaries of drugs and medicines;
e. Ambulance and burial services;
f. Generation and distribution of electric power, water, steam, natural gas, oil or other fuel used as a necessary utility;
g. Distribution of gas, oil and other fuels;
h. Telephone, telegraph and messenger services;
i. Heating, refrigeration and cooling services;
j. Railroad, bus, trolleys, subway, taxi and limousine services;
k. Water, air and land transportation services and attendant facilities;
l. Cold store warehouse;
m. Ice manufacturing and distribution facilities and services;
n. Minimal maintenance of equipment and machinery;
o. Plant and industrial protection services;
p. Industries where continuous processing or manufacturing is required by the very nature of the process involved.
q. Newspaper publication and distribution;
r. Newsstands;
s. Radio and television broadcasting;
t. Motion picture, theatrical and musical performances;
u. Motor vehicle service stations that sell motor fuel and motor oil, and that customarily provide daily repair services or products for any of the following systems or parts of a motor vehicle:
i. Air conditioning system;
ii. Batteries;
iii. Electrical system;
iv. Engine cooling system
v. Exhaust system;
vi. Fuel system;
vii. Tires and tubes;
viii. Emergency work necessary for the safe and lawful operation of the motor vehicle.
v. Athletic and sporting events;
w. Parks, beaches and recreational facilities;
x. Scenic, historic and tourist attractions;
y. Amusement centers, fairs, zoos and museums;
z. Libraries;
aa. Educational lectures, forums and exhibits;
bb. Service organizations (USO, YMCA, etc.);
cc. Coin-operated laundry and dry-cleaning facilities;
dd. Food stores operated by an owner or manager in addition to not more than six employees working in the store at one time
217
on a Sunday; (Note: the City Council of a city may, by ordinance increase the number of employees)
ee. Bait shops for the sale of live bait and fishing tackle;
ff. From April 1st through June 15th, floral nurseries for the sale of bedding plants and nursery stock;
gg. From November 20th through December 24th, Christmas tree stands;
hh. Hobby shows, craft shows, fairs, exhibits;
ii. Occasional rummage sales, including garage sales or other sales for which a sales tax permit is not required;
jj. Community festivals licensed or authorized by the City Council of a city or the board of county commissioners;
kk. Premises licensed to dispense beer and alcoholic beverages within the limits prescribed in NDCC Sections 5-02-05 and 5-02-05.1.
ll. Credit apparel services, lodging and travel reservation services, and, notwithstanding subsection 2, telemarketing of goods and services. (Source: NDCC Section 12.1-30-03)
Division 6. Cruelty to Animals
13.0408 Cruelty to Animals
1. It is an offense for any person to:
a. Overdrive, overload, torture, cruelly beat, neglect or unjustifiably injure, maim, mutilate or kill any animal, or cruelly work any animal when unfit for labor;
b. Deprive any animal over which he has charge or control of necessary food, water or shelter;
c. Keep any animal in any enclosure without exercise and wholesome change of air;
d. Abandon any animal;
e. Allow any maimed, sick, inform or disabled animal of which he is the owner, or of which he has custody, to lie in any street, road or other public place for more than three (3) hours after notice;
f. No person shall willfully instigate, or in any way further, any act of cruelty to any animal or animals, or any act tending to produce such cruelty.
218
g. Cage any animal for public display except as allowed by NDCC Section 36-21.1-02(8);
2. The word “animal” includes every living animal except the human race; the word “torture” or “cruelty” includes every act, omission, or neglect whereby unnecessary or unjustifiable pain, suffering or death is cause or permitted. (Source: NDCC Section 36-21.1-01,02)
Division 7. Alcohol Related Offenses
13.0409 Persons Less than Twenty-One (21) Years Prohibited – Exceptions
1. Any person under twenty-one (21) years of age manufacturing or attempting to manufacture alcoholic beverages, purchasing or attempting to purchase alcoholic beverages, consuming or having recently consumed alcoholic beverages other than during a religious service, being under the influence of alcoholic beverages, or being in possession of alcoholic beverages, or furnishing money to any person for such purchase, or entering any licensed premises where alcoholic beverages are being sold or displayed, except as provided in Subsection 2, is guilty of an offense. The court may, under this Section, refer the person to an outpatient addiction facility licensed by the state department of human services for evaluation and appropriate counseling or treatment. The offense of consumption occurs where consumption takes place or where the offender is arrested. For purposes of this section, possession includes actual or constructive possession. Constructive possession means the power and capability to exercise dominion and control over the alcoholic beverage.
2. Except as permitted in the Section, any licensee who dispenses alcoholic beverages to a person under twenty-one (21) years of age, or who permits such a person to remain on the licensed premises while alcoholic beverages are being sold or displayed, is guilty of an offense, subject to the provisions of NDCC Sections 5-01-08, 5-01-08.1 and 5-01-08.2. Any person under twenty-one (21) years of age may remain in a restaurant where alcoholic beverages are being sold if the restaurant is separate from the room in which alcoholic beverages are opened or mixed and gross sales of food are at official duty. Any person under twenty-one years of age may remain in an area of a site where beer, wine, or sparkling wine is sold in accordance with the conditions of an event permit issued pursuant to NDCC Section 5-02-01.1. Any person who is nineteen years of age or older but under twenty-one years of age may be
219
employed by the restaurant to serve and collect money for alcoholic beverages, if the person is under the direct supervision of a person twenty-one or more years of age, but may not be engaged in mixing, dispensing, or consuming alcoholic beverages. Any establishment where alcoholic beverages are sold may employ persons from eighteen (18) to twenty-one (21) years of age to work in the capacity of musicians under the direct supervision of a person twenty-one (21) or more years of age. (Source: NDCC Sections 5-01-08 and 5-02-08).
13.0410 Misrepresentation of Age – Obligations of Licensee
Any person who shall misrepresent or misstate his age or the age of any other person, or shall misrepresent his age or the age of any other person, or shall misrepresent his age through presentation of any document purporting to show that person to be of legal age to purchase alcoholic beverages is guilty of an offense. Any licensee may keep a book and may require anyone who has shown documentary proof of his age, which substantiates his age to allow the purchase of alcoholic beverages, to sign the book if the age of that person is in question. The book must show the date of the purchase, the identification used in making the purchase and the appropriate numbers of such identification, the address of the purchaser, and the purchaser’s signature. (Source: NDCC Section 5-01-08.1).
13.0411 Bottle Clubs Prohibited
Any person operating an establishment whereby persons are allowed to bring their own alcoholic beverages on the premises where the proprietor sells soft drinks, mix, ice, or charges for bringing such beverages on the premises, are guilty of an offense. (Source: NDCC Section 5-01-10).
13.0412 Public Intoxication – Assistance – Medical Care
A peace officer has authority to take any apparently intoxicated person to the person’s home, to a local hospital, to a detoxification center, or, whenever that person constitutes a danger to himself or others, to a jail for purposes of detoxification. A duly licensed physician of a local hospital has authority to hold that person for treatment up to seventy-two (72) hours. That intoxicated person may not be held in jail because of intoxication more than twenty-four (24) hours. An intoxicated person may not be placed in a jail unless a jailer is constantly present within hearing distance and medical services are provided when the need is indicated. Upon placing that person in a hospital, detoxification center, or jail, the peace officer shall notify the intoxicated person’s family as soon as possible. Any additional costs incurred by the city on account of an intoxicated person shall be recoverable from that person. (Source: North Dakota Century Code Section 5-01-05.1).
220
13.0413 No Prosecution for Intoxication
No person may be prosecuted solely for public intoxication. Law enforcement officers may utilize standard identification procedures on all persons given assistance because of apparent intoxication. (Source: NDCC Section 5-01-05.2).
Division 8. Protection of Minors
13.0414 Objectionable Materials or Performance – Display to Minors-Definitions – Penalty
1. A person is guilty of an offense if he willfully displays at newsstands or any other business establishment frequented by minors, or where minors are or may be invited as a part of the general public, any photograph, book, paperback book, pamphlet, or magazine, the exposed cover or available content of which exploits, is devoted to, or is principally made up of depiction’s of nude or partially denuded human figures posed or presented in a manner to exploit sex, lust or perversion for commercial gain.
2. As used in this section:
a. “Nude or partially denuded human figures” means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernible turgid state even if completely and opaquely covered.
b. “Where minors are or may be invited as a part of the general public” includes any public roadway or public walkway.
c. The above shall not be construed to include a bona fide school, college, university, museum, public library or art gallery. (Source: NDCC Section 12.1-27.1-03.1)
Division 9. Regulation of Minors
13.0415 Curfew, General Regulations – Penalty
221
1. As used in this section, unless the context or subject matter otherwise requires:
a. “Juvenile” for the purpose of this ordinance means a person less than sixteen (16) years of age.
b. “Parents” means the legally appointed father and/or mother, or the natural father and/or mother, or the person or persons in charge of or in control of said juvenile as herein defined including a bona fide employer of said juvenile.
c. “Curfew hour” means the time of night, which is designated as 10:00 o’clock PM, except Friday and Saturday nights, which is 11:00 o’clock PM.
d. “Sounding of the curfew” means the sound emitted by a single blast of the fire siren, sounded at the curfew hour.
2. Each night of the year there shall be a sounding of the curfew at the curfew hour. It shall be unlawful for any juvenile as herein defined to be abroad upon the streets, alleys, public grounds of the City, public places of amusement, or retail or wholesale business establishments, between the curfew hour and 5:00 o’clock AM of the following day unless accompanied by a parent as defined herein. Any juvenile violating this provision of this ordinance, in addition to the other punishments prescribed in this ordinance, shall be detained by the authorities until picked up by parent as defined herein.
It shall be unlawful for any parents to allow their juveniles as herein defined to be abroad upon the streets, alleys, public grounds of the City, public places of amusement, or retail or wholesale business establishments between the curfew hour and 5:00 o’clock AM of the following day unless accompanied by a parent as herein defined.
4. A violation of this section shall be an infraction. Any person, firm, or corporation violating any of the terms or provisions of this article shall, upon conviction thereof, be punished by a fine not to exceed five hundred dollars ($500.00).
ARTICLE 5 – Sentencing
13.0501 Classification of Offenses
222
Offenses against the ordinances of this city are divided into two (2) classes, as follows:
1. Offense, for which a maximum penalty of thirty (30) days imprisonment, a fine of one thousand dollars ($1,000.00), or both, may be imposed.
2. Infraction, for which a maximum fine of five hundred dollars ($500.00) may be imposed. Any person convicted of an infraction who has, within one year prior to commission of the infraction of which he was convicted, been previously convicted of an offense classified as an infraction in state statutes or the ordinances of this or any other North Dakota city may be sentenced as though convicted of an offense. If the prosecution contends that the infraction is punishable as an offense, the complaint shall so specify unless the prosecution is unable with reasonable effort to learn of the prior conviction prior to execution of the complaint.
3. All violations of the provisions of the ordinances of this City are offenses unless specifically labeled infractions or unless a different classification or punishment is specifically authorized.
4. The penalties listed shall not be construed to prohibit the utilization of the sentencing alternatives, other than a fine or imprisonment, provided by NDCC Section 12-1-32-02 and ordinance Section 13.0502, for the violation of a City ordinance, nor does this section limit the use of deferred or suspended sentences.
(Source: NDCC Sections 12.1-32-01 and 40-05-06).
13.0502 Sentencing Alternatives
1. Every person convicted of an offense who is sentenced by the court must be sentenced to one or a combination of the following alternatives, unless the sentencing alternatives are otherwise specifically provided in the statute defining the offense or sentencing is deferred under subsection 4:
a. Payment of the reasonable costs of the person’s prosecution;
b. Probation;
c. A term of imprisonment, including intermittent imprisonment;
d. A fine;
223
e. Restitution for damages resulting from the commission of the offense;
f. Restoration of damaged property or other appropriate work detail;
g. Commitment to an appropriate licensed public or private institution for treatment of alcoholism, drug addiction or mental disease or defect.
h. Commitment to a sexual offender treatment program.
Sentences imposed under this subsection shall not exceed in duration the maximum sentences of imprisonment provided in Section 13.0501 or as provided specifically in an ordinance defining an offense.
This subsection shall not be construed as permitting the unconditional discharge of an offender following conviction. This subsection shall not be construed to prohibit utilization of NDCC Section 40-18-13 relating to suspension of sentence, nor shall this subsection limit the conditions, which can be imposed on a probationer under Sections 13.0507, 13.0508, or 13.0509.
2. Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal.
3. A court may suspend the execution of all or a part of the sentence imposed. The court shall place the defendant on probation during the term of suspension.
4. A court, upon application or its own motion, may defer imposition of sentence. the court must place the defendant on probation during the period of deferment. An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment. In any subsequent prosecution, for any other offense, the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under NDCC Section 12.1-32-07.1.
5. A court may, prior to imposition of sentence, order the convicted offender committed to an appropriate licensed public or private institution for diagnostic testing for such period of time as may be necessary, but not to exceed thirty days. The court may, by
224
subsequent order, extend the period of commitment for not to exceed thirty additional days. The court may also order such diagnostic testing without ordering commitment to an institution. Validity of a sentence must not be challenged on the ground that diagnostic testing was not performed pursuant to this subsection.
6. All sentences imposed must be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement must become part of the record of the case.
7. If an offender is sentenced to a term of imprisonment, that term of imprisonment commences at the time of sentencing, unless, upon motion of the defendant, the court orders the term to commence at some other time. (Source: NDCC Section 12.1-32-02).
13.0503 Procedure for Trial of Infraction
1. Except as provided in this subsection, all procedural provisions relating to the trial of criminal cases as provided in the statutes or rules relating to criminal procedure shall apply to the trial of a person charged with an infraction. A person charged with an infraction is not entitled to be furnished counsel at public expense nor to have a trial by jury pursuant to NDCC Section 40-18-19 unless he may be subject to a sentence of imprisonment under subsection 2 of Section 13.0501.
2. Except as provided in NDCC Title 12.1 or the ordinances of this City, all provisions of law and rules of criminal procedure relating to offenses shall apply to infractions, including, but not limited to, the powers of law enforcement officers, the periods for commencing action and bringing a case to trial, and the burden of proof.
3. Following conviction of an infraction, the offender may be sentenced in accordance with subsection 1 of Section 13.0502, except that a term of imprisonment may not be imposed except in accordance with subsection 3 of Section 13.0506 or subsection 2 of Section 13.0501.
4. If an ordinance provides that conduct is an infraction without specifically including a requirement of culpability, no culpability is required.
5. Except as provided in this section, Sections 13.0501 or 13.0502, or as the context may otherwise indicate differentiation between the infraction classification and the offense classification, the term
225
“offense” refers to all violations of the ordinances of this City including infractions. (Source: NDCC Section 12-32-03.1)
13.0504 Special Sanction for Organizations
When an organization is convicted of an offense, the court may, in addition to any other sentence which may be imposed, require the organization to give notice of its conviction to the persons or class of persons ostensibly harmed by the offense, by mail or by advertising in designated areas or by designated media or otherwise. (Source: NDCC Section 12.1-32-03).
13.0505 Factors to be Considered in Sentencing
The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations regarding the desirability of sentencing an offender to imprisonment.
1. The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his property.
2. The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property.
3. The defendant acted under strong provocation.
4. There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct.
5. The victim of the defendant’s conduct induced or facilitated its commission.
6. The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury, which was sustained.
7. The defendant has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial period of time before the commission of the present offense.
8. The defendant’s conduct was the result of circumstances unlikely to recur.
226
9. The character, history and attitudes of the defendant indicate that he is unlikely to commit another crime.
10. The defendant is particularly likely to respond affirmatively to probationary treatment.
11. The imprisonment of the defendant would entail undue hardship to himself or his dependents.
12. The defendant is elderly or in poor health.
13. The defendant did not abuse a public position of responsibility or trust.
14. The defendant cooperated with law enforcement authorities by bringing other offenders to justice, otherwise cooperated.
Nothing herein shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing. (Source: NDCC Section 12.1-32-04).
13.0506 Imposition of Fine – Response to Non-Payment
1. The court, in making a determination of the propriety of imposing a sentence to pay a fine, shall consider the following factors:
a. The ability of the defendant to pay without undue hardship;
b. Whether the defendant, other than a defendant organization, gained money or property as a result of commission;
c. Whether the sentence to pay a fine will interfere with the defendant’s capacity to make restitution;
d. Whether a sentence to pay a fine will serve a valid rehabilitative purpose.
2. The court may allow the defendant to pay any fine or costs imposed in installments. When a defendant is sentenced to pay a fine or costs, the court shall not impose at the same time an alternative sentence to be served in the event that the fine or costs are not paid.
3. If the defendant does not pay any fine or costs imposed, or make any required partial payment, the courts, upon motion of the prosecuting attorney or on its own motion, may issue an order to
227
show cause why the defendant shows that his default is excusable, the court may, after hearing, commit him to imprisonment until the fine, or costs or both, are fully paid or discharged by labor as provided in NDCC Section 40-18-12.
The court may not commit a person under this section when the sole reason for his nonpayment is his indigence. An order of commitment under this subsection shall not be for a period in excess of thirty (30) days. As used in this subsection, “fine” does not include a fee established pursuant to Section 9.2208 of these ordinances. (Source: NDCC Section 12.1-32-05 and Section 40-11-12)
13.0507 Incidents of Probation
1. Unless terminated as provided in subsection 2, the period during which a sentence to probation shall remain conditional and be subject to revocation is two (2) years.
2. The court may terminate a period of probation and discharge the defendant at any time earlier than that provided in subsection 1 if warranted by the conduct of the defendant and the ends of justice.
3. Notwithstanding the fact that a sentence to probation can subsequently be modified or revoked, a judgment, which includes such a sentence, constitutes a final judgment for all other purposes. (Source: NDCC Section 12.1-32-06.1)
13.0508 Conditions of Probation – Revocation
1. The conditions of probation must be such, as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so. The court shall provide as an explicit condition of every probation that the defendant not commits another offense during the period for which the probation remains subject to revocation.
2. When imposing a sentence to probation, the court may impose such conditions as it deems appropriate, and may include any one or more of the following:
a. Work faithfully at a suitable employment or faithfully pursue a course if study or of vocational training that will equip the defendant for suitable employment;
b. Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose;
228
c. Attend or reside in a facility established for the instruction, recreation or residence of persons on probation;
d. Support the defendant’s dependents and meet other family responsibilities;
e. Make restitution or reparation to the victim of the defendants for the damage or injury, which was sustained, or perform other reasonable assigned work. When restitution, reparation or assigned work is a condition of probation the court shall proceed as provided in Section 13.0509;
f. Pay a fine imposed after consideration of the provisions of Section 13.0506;
g. Refrain from excessive use of alcohol, or any use of narcotics or of another dangerous or abusable drug without a prescription.
h. Permit the probation officer to visit the defendant at reasonable times at the defendant’s home or elsewhere.
i. Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer.
j. Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment.
k. Report to a probation officer at reasonable times as directed by the court or the probation officer.
l. Submit to a medical examination or other reasonable testing for the purpose of deterring the defendant’s use of narcotics, marijuana, or other controlled substance whenever required by a probation officer.
m. Refrain from associating with known users or traffickers in narcotics, marijuana, or other controlled substances.
n. Submit the defendant’s person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant.
229
o. Serve a term of imprisonment of up to one-half of the maximum term authorized for the offense of which the defendant was convicted or one year, whichever is less.
p. Reimburse the costs and expenses determined necessary for the defendant’s adequate defense when counsel is appointed for the defendant. When reimbursement of indigent defense costs and expenses is imposed as a condition of probation, the court shall proceed as provided in subsection 4 of NDCC Section 12.1-32-08.
q. Provide community service for the number of hours designated by the court.
r. Refrain from any subscription to, access to, or use of the Internet.
3. When a defendant is sentenced to probation, the defendant must be given a certificate explicitly setting forth the conditions on which he is being released.
4. The court, upon notice to the probationer may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the period for which the sentence remains conditional. If the defendant violates a condition at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under Section 13.0502 at the time for the initial sentencing.
5. Jurisdiction over a probationer may be transferred from the court that imposed the sentence to another court of this state, with the concurrence of both courts. Retransfer of jurisdiction may also occur in the same manner. The court to which jurisdiction has been transferred under this subsection exercise all powers permissible under this chapter over the defendant. (Source: NDCC Section 12.1-32-07).
13.0509 Restitution or Reparation – Procedures
1. Prior to imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. At or following the hearing, the court shall make determinations as to:
230
a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages must be limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action;
b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property;
c. The likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilitation purpose in the case of the particular offender considered.
The court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance of any condition or conditions of probation established pursuant to this subsection. Any payments made pursuant to such order must be deducted from damages awarded in a civil action arising from the same incident. An order that a defendant make restitution or reparation as a sentence or condition of probation may, unless the court directs otherwise, be filled, transcribed, and enforced by the person entitled to the restitution or reparation in the same manner as civil judgments rendered by the courts of this state may be enforced.
2. The court may order the defendant to perform reasonable assigned work as a condition of probation, which assigned work need not be related to the offense charged, but must not be solely for the benefit of a private individual other than the victim. (Source: NDCC Section 12.1-32-08).
13.0510 Merger of Sentences – Sentencing for Multiple Offenses
1. Unless the court otherwise orders, when a person serving a term of commitment is committed for another offense or offenses, the shorter term or the shorter remaining term shall be merged in the other term. When a person on probation or parole for an offense committed in this city is sentenced for another offense or offenses, the period still to be served on probation or parole shall be merged in any new sentence of commitment or probation. When the court merges sentences under this subsection it shall forthwith furnish the penal facility in which the defendant is confined under sentence with authenticated copies of its sentence, which shall cite the sentences being merged. If the court has imposed a sentence,
231
which is merged pursuant to this subsection, it shall modify such sentence in accordance with the effect of the merger.
2. A defendant may not be consecutively sentenced to more than one year. (Source: NDCC Section 12.1-32-11).
ARTICLE 6 – Penalties
Any person who is convicted of violating or of failing to comply with any of the provisions of the ordinances contained in this chapter for which a penalty is not specifically set forth, may be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment not to exceed thirty (30) days, or both. (Source: NDCC Section 40-05-06)
232
CHAPTER FOURTEEN
FRANCHISE
ARTICLE 1 – Grant of Franchises
14.0101 Power to Grant
14.0102 Compliance with Applicable Laws and Ordinances
14.0103 Indemnification
14.0104 Insurance
14.0105 Ordinance Granting to Midcontinent Cable Systems Co. of North Dakota the Nonexclusive Right to Erect, Maintain and Operate In, Under, Over, Along, Across the Streets, Lanes, Avenues, Sidewalks, Alleys, Bridges, Highways, Easements Dedicated for Compatible Uses and Other Public Places in the City of Center, North Dakota, and the Subsequent Additions Thereto, Towers, Poles, Lines, Cables, Wires and Other Apparatus for the Purpose of Transmission and Distribution by Cable or Television Signals to Enable Sale of its Community Television Antenna Service to Inhabitants of Said City and Other Various Purposes, and Regulating the Same and Providing for Compensation of the City
233
CHAPTER FOURTEEN
FRANCHISE
ARTICLE 1 – Grant of Franchises
14.0101 Power to Grant
The City Council may grant to any person, firm, partnership, association, corporation, company or organization of any kind a franchise or special right or privilege to operate or do business in the City, but such franchise shall be subject to the provisions of this article. (Source: NDCC Section 40-05-01- (57))
14.0102 Compliance with Applicable Laws and Ordinances
The grantee of any franchise during the life of the franchise shall be subject to all lawful exercise of the police power of the City, and to such reasonable regulation, as the City shall by resolution or ordinance provide.
14.0103 Indemnification
The grantee of any franchise shall indemnify and save the City and its agents and employees harmless from any and all claims for personal injury or property damages and any other claims, costs, including attorney’s fees, expenses of investigation and litigation of claims and suits thereon which may result from the activities of the grantee of the franchise in the City.
14.0104 Insurance
Any grantee of a franchise by the City shall carry and keep in force a public liability policy of insurance, insuring the grantee of the franchise and the City against any and all liability, of not less than two hundred fifty thousand dollars ($250,000.00) for any one person, property damage, personal injury, or death, and five hundred thousand dollars ($500,000.00) for any one accident resulting in property damage, personal injury, or death. The City may demand proof of such insurance coverage in an insurance company licensed to do business in the State of North Dakota. (Source: NDCC Section 32-12.1-03)
234
14.0105 Ordinance Granting to Midcontinent Cable Systems Co. of North Dakota the Nonexclusive Right to Erect, Maintain and Operate In, Under, Over, Along, Across the Streets, Lanes, Avenues, Sidewalks, Alleys, Bridges, Highways, Easements Dedicated for Compatible Uses and Other Public Places in the City of Center, North Dakota, and the Subsequent Additions Thereto, Towers, Poles, Lines, Cables, Wires and Other Apparatus for the Purpose of Transmission and Distribution by Cable or Television Signals to Enable Sale of its Community Television Antenna Service to Inhabitants of Said City and Other Various Purposes, and Regulating the Same and Providing for Compensation of the City
A. Statement of Purpose
The purpose of this Ordinance is to effectuate the City’s award of a franchise to Midcontinent Cable System on the 30th day of December, 1986, and to establish the terms and conditions governing the franchise and regulation thereof.
B. Definitions
For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive, words not defined shall be given their common and ordinary meaning.
1. “Basic Cable Service” means the service tier which includes the retransmissions of local broadcast signals.
2. “Channel” shall mean a portion of the electromagnetic frequency spectrum which is used in a cable system and is capable of delivering a television channel (as television channel is defined by FCC regulations).
3. “The City” is the City of Center, North Dakota.
4. “Council” is the City Council of Center, North Dakota.
5. “Cable Television System” or “Cable System” is a system utilizing certain electronic and other components which
235
deliver subscribing members of the public various communications services.
6. “Cable Television Reception Service” means the delivery by the company to television receivers (or any other suitable type of electronic terminal or receiver of the electronic signals) and other communication services carried over said system.
7. “FCC” shall mean Federal Communications Commission.
8. “Franchise” shall mean the rights and obligations extended by the City to company herein.
9. “Company” is Midcontinent Cable Systems Co. of North Dakota or anyone who succeeds Midcontinent Cable Systems Co. of North Dakota in accordance with the provision of this Ordinance.
10. “Ordinance” shall mean this Ordinance No. 05-01 of the City of Center.
11. “Person” is any person, firm, partnership, association, corporation or organization of any kind and any other legally recognized entity.
12. “Public property” shall mean any real property owned by the City or any other governmental unit, other than a street.
13. “Street” shall mean the surface of and the space above and below any public street, road, cartway, highway, freeway, land, path, public way, alley court, sidewalk, boulevard, parkway, drive, or any easement of right-of-way now or hereafter held by the City or any easements for compatible uses within the City.
14. “Subscribers” are those persons contracting to receive cable television reception services furnished under this Ordinance by company.
C. Grant of Non-Exclusive Authority
There is hereby granted by the City to the Company, and to its successors, assigns or designees, the non-exclusive right to erect, maintain and operate in, under, over, along, across and upon the present and future streets, lanes, avenues, sidewalks, alleys, bridges, highways, easements dedicated for
236
compatible uses and other public places within the City, and subsequent additions thereto, towers, poles, lines, cables, wires, manholes and all other fixtures and equipment necessary for the maintenance and operation in the City of a cable television system, for the purpose of transmission and distribution of audio, visual, electronic and electric impulses in order to furnish television and radio programs and various other communications services to the public by what is commonly called a Community Antenna Television System, for a period of fifteen (15) years, commencing from and after the effective date of this Ordinance.
D. Compliance with Applicable Laws and Ordinances
The Company shall, during the term hereof, except in those areas which have been preempted by the Cable Communication Policy Act of 1984 or which are regulated by the Federal Communications Commission, be subject to all lawful exercise of the regulating and police powers of the City.
E. Territorial Area Involved
This Ordinance relates to the present territorial limits, the City and to any area annexed thereto during the term of this Ordinance. Company shall not be required to service residents, newly annexed areas of the City that are beyond four hundred feet (400’) from existing distribution lines except upon payment by such residents of the capital costs incurred by the Company bringing service to such residents. Company shall evaluate each of its proposal for furnishing service and the terms for repayment of the cost of furnishing such service. Company may but shall not be required to, serve areas or individual homes adjoining, but outside the City limits, that may be served from its existing facilities. Company may negotiate directly with such customers the amount to be charged for the bringing of the service to the customers.
F. Liability and Indemnification
1. Company shall, at all times, keep in effect the following types of insurance coverage:
a. Workmen’s Compensation upon its employees engaged in any manner in the installation or servicing of its plant and equipment within the City of Center, North Dakota.
b. Property Damage Liability insurance to the extent of Two Hundred Fifty Thousand Dollars ($250,000.00) as to each occurrence and Two Hundred Fifty Thousand Dollars ($250,000.00) aggregate, and personal injury liability insurance to the extent of Five Hundred Thousand Dollars ($500,000.00) as to each occurrence and Five Hundred
237
Thousand Dollars ($500,000.00) aggregate. Excess bodily injury and property damage of One Million Dollars ($1,000.000.00) aggregate. Automobile bodily injury and property damage liability combined One Million Dollars ($1,000.000.00) each occurrence.
2. Company shall indemnify, protect, and save harmless the City from and against losses and physical damage to property and bodily injury or death to persons, including payments made under any Workmen’s Compensation law which may arise out of the erection, maintenance, presence, use or removal of said attachments or poles within the City, or by any act of Company, its agents or employees. Company shall carry insurance in the above described amounts to protect the parties hereto from and against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of such loss, injury or damage. Company shall also carry such insurance as it deems necessary to protect it from claims under the Workmen’s Compensation laws in effect that may be applicable to Company. All insurance required shall be and remain in full force and effect for the entire life of the rights granted hereunder. Insurance certificates evidencing such insurance coverage shall be deposited with and kept on file by the City.
3. These damages or penalties shall include, but shall not be limited to, damages arising out of copyright, infringements, and all other damages arising out of the installation, operation, or maintenance of the Cable Television system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this Ordinance.
G. General System Specifications
The facilities used by the Company shall have a minimum capacity of 21 channels. The facilities shall also be capable of distributing color television signals, and when the signals the Company distributes are received in color, they shall be distributed in color when technically feasible.
H. Technical Standards
1. Company shall be governed by technical standards established by the FCC.
2. Company’s methods and schedules for testing the System shall be in compliance with the reasonable standards accepted in the industry.
238
I. Operation and Maintenance of System
1. The Company shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest possible time. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. A record shall be maintained for all service interruptions and said record shall, upon reasonable notice, be made available to the City Auditor.
2. A toll-free or collect telephone number for the reception of complaints shall be provided to subscribers and Company shall maintain a repair service capable of responding to subscriber complaints or requests for service within 24 hours exclusive of Sundays and holidays, after receipt of the complaint or request. Company shall investigate and resolve all complaints regarding quality of service, equipment malfunction, billing disputes and other matters pursuant to the procedure set forth in this Ordinance. Company will bear the costs included in making such repairs, adjustments or installations unless Company deems such repairs necessary due to neglect or abuse by the subscriber. All costs for repairs necessary due to neglect or abuse by the subscriber shall be borne by the subscriber.
3. Company shall maintain a toll free longs distance number to its business office and shall maintain regular office hours and emergency twenty-four answering service for the purpose of responding to billings complaints. Service requests involving a loss of service affecting more than one subscriber on the same feeder line will be dealt with as soon as possible. All other complaints relating to service shall be, if possible, rectified within one (1) day, exclusive of Sundays and holidays.
4. Company shall furnish each subscriber at the time service is installed, written instructions that clearly set forth procedures, for making inquiries or complaints, including the name, address and telephone number of the office to which such inquiries or complaints are to be addressed.
5. Upon taking over the existing System, Company shall have a reasonable time to re-map the System. Company shall thereafter, upon request, provide City a current map or set of maps drawn to scale, showing all System equipment installed and in place in streets and other public places.
239
J. Service to Schools and City
1. The Company shall, subject to the line extension provision of Section 14.0105(E), provide basic cable service at no cost to public and parochial elementary and secondary schools within the City, at one terminal junction for educational purposes upon request of the school system.
2. Company shall, subject to the line extension provision of Section 14.0105(E), also provide to the City without charge at one City owned building other than a hospital, nursing home, apartment or building at the airport, to be selected by the Council of Center, one junction terminal to said building and shall also furnish to the building, without charge, basic service to all sets connected within such building to the terminal junction.
3. The Company shall allocate one channel to the City as a public, educational or government access channel. Until such time as the City files a written request with Company for full-time use of the channel, Company shall have the right to use that portion of the channel capacity that is not being used by the City. Company shall have a reasonable period of time after notification to vacate its use of the channel. Company shall assist the City in obtaining the necessary licenses and frequency clearance to enable the City to use said channel.
K. Emergency Use of Facilities
In the case of any emergency or disaster, the Company shall, upon request of the City Council, make available its facilities to the City for emergency use during the emergency or disaster. If the City wishes to operate a Civil Emergency Alert System on a plan that is mutually acceptable to the City and Company and provides Company with the necessary equipment for such system, Company will permit the system to be used on the cable system.
L. Safety Requirements
The Company shall, at all times, employ ordinary care and shall use and maintain commonly accepted methods and devices for preventing failures and accidents which are likely to cause damages, injuries or nuisances to the public.
M. Limitations on Rights Granted
1. All transmission and distribution structures, lines and equipment erected by the Company within the City shall be so located as to cause minimum interference with the proper use of streets, alleys
240
and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places, and said poles or towers shall be removed by company whenever the City Public Works Superintendent or Engineer reasonably finds that the same restrict or obstruct the operation or location of any future streets or public places in the City of Center, North Dakota.
2. Construction and maintenance of the transmission distribution system shall be in accordance with the provisions of the National Electrical Safety Code, prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, and such applicable Ordinances and regulations of the City of Center, North Dakota, affecting electrical installation, which may be presently in effect, or changed by future ordinances.
3. In case of disturbance of any street, sidewalk, alley, public way, or paved area, the Company shall, at its own cost and expense and in manner approved by the City Public Works Superintendent or Engineer, replace and restore such street, sidewalk, alley, public way, or paved areas in as good a condition as before the work involving such disturbance was done. Company shall not be required to pay a fee for street openings.
4. If at any time during the period of this Ordinance the City shall lawfully elect to alter or change the grade of any street, sidewalk, alley, or other public way, the Company, upon reasonable notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
5. The Company shall, on the request of any person holding a building moving permit issued by the City or any person who wishes to remove trees or structures from their property, temporarily raise or lower its wires to permit the moving of buildings or tree removal. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the Company shall have the authority to require such payment in advance. The Company shall be given no less than forty-eight (49) hours advance notice to arrange for such temporary wire changes.
6. The Company shall have the authority to trim trees upon the overhanging streets, alleys, sidewalks and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company, except that at
241
the option of the City, such trimming may be done by it or under its supervision and direction at the expense of the Company.
7. Company shall, at its expense, protect, support, temporarily disconnect, relocate on the same street, alley or public place, or remove from the street, alley or public place, any property of Company when required by the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishments of street grade, installation of sewers, drains, waterpipes, power lines, signal lines, and tracks or any other types of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or other structure of public improvement; provided, however, that Company shall in all cases have the privileges and be subject to the obligations to abandon any property of Company in place as hereinafter provided.
8. In all sections of the City where the City designates an area where all presently above ground services to be placed underground, the Company shall place its wires underground on the same time schedule and on the same conditions that are applicable to the providing of other above ground services in the designated areas.
9. In the event that the use of any part of the system is discontinued for any reason for a continuous period of twelve (12) months, or in the event such systems or property has been installed in any street or public place without complying with the requirements of this Ordinance, or the rights granted hereunder have been terminated, cancelled or have expired, Company shall, subject to the rights of the City to acquire or transfer the system, promptly remove from the streets, or public places all such property and poles of such system other than any which the City may permit to be abandoned in place. In the event of such removal, Company shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the City.
10. Any property of Company to be abandoned in place shall be abandoned in such a manner as the City may prescribe. Upon permanent abandonment of the property of Company in place, it shall submit to the City an instrument to be approved by the City, transferring to the City the ownership of such property.
11. Nothing in the Franchise shall be construed to prevent the City from constructing sewers, grading, paving, repairing and/or altering any street, or laying down, repairing or removing water mains, or constructing, or establishing any other public work. All such work
242
shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of Company.
12. If any such property of Company herein shall interfere with the construction or repair of any street or improvement, thirty days notice shall be given to Company by City and all such poles, wires, conduits, or other appliances and facilities shall be removed or replaced by Company in such manner as shall be directed by City so that the same shall not interfere with the said public work of City, and such removal or replacement shall be at the expense of Company herein.
N. Ownership and Removal of Facilities
All cable and passive equipment for cable television reception service installed by Company at a subscriber’s location shall remain the property of Company and Company shall have the right to remove said cable and equipment. Upon termination of service to any subscriber, the Company shall promptly remove all its above ground facilities and equipment from the premises of such subscriber upon his request.
O. Transfer of Ordinance
The Company shall not assign this ordinance to another person without prior approval of the City Council, which approval shall not be unreasonable withheld.
P. Payment to the City
1. During the term of the rights granted hereunder, and so long as the Company operates said system, the Company shall pay, as compensation to the City in 1987 and 1988 a sum equal to two percent (2%) of the annual total gross receipts of the cable system and thereafter the rate shall be three percent (3%) unless changed by the City as hereinafter prescribed. Under the Cable Communications Policy Act of 1984, the City may increase the fee to a maximum of five percent (5%) of the gross receipts. If the City at any time after 1988 elects to increase the fee above three percent (3%), the increase will be passed on to the subscribers and will be separately noted on the billing statement. “Gross Receipts” shall consist of those revenues derived from the monthly service charges paid by subscribers for basic cable service and premium pay services, such as Showtime. Gross receipts shall not include revenues received as installation charges, and fees for
243
reconnections, inspections, repairs, or modifications of any installation or State and Federal taxes relating thereto.
2. The payments that Company makes to the City shall be in lieu of any occupation tax, license tax, or similar levy by the City and shall be paid on a monthly basis based on the preceding year’s gross subscriber revenues. Upon completion of Company’s audit, Company shall pay to the City within 15 days, the balance due, if any, for the operating year covered by the audit as shown by the statement of Company’s auditor.
This amount payable by the Company to the City shall be the sole amount payable for all of its rights under this Ordinance including, but not limited to, the use of the streets and other facilities of the City in the operation of the Cable System and for the municipal supervision thereof and shall be in lieu of any other occupational tax.
3. Notwithstanding the annual gross receipts fee or tax payable hereunder, if the Company is legally obligated to collect or pay any sales tax or other taxes, the Company shall have the right to charge the subscribers an additional amount equal to such tax.
4. No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this Ordinance. The Company’s gross receipts as defined in Section 14.0105(P)(1) and its subscriber records shall be subject to audit and recomputation by the City.
Q. Duration and Renewal of Ordinance
The rights granted to Company herein shall, except as provided in this Section, terminate twenty-five (25) years from July 1, 1996, which Ordinance and franchise shall be subject to renewal pursuant to the provisions of the Cable Communications Policy Act of 1984 applicable to new ordinances that are in the nature of a franchise. Pending final completion of renewal proceedings, the Ordinance and franchise shall remain in effect even if the original twenty-five (25) year term has expired. If this Ordinance and franchise are not renewed or if it is revoked for cause by the City, the transfer of Company’s system shall be governed by Section 627 of the Cable Communications Policy Act of 1984.
R. Erection, Removal and Common Use of Poles
244
1. No poles or other wire-holding structures shall be erected by the Company without prior approval of the designated representative of the City Council with regard to locations, height, type or any other pertinent aspect, which approval shall not be unreasonably withheld. However, no locations of any pole or wire-holding structure of the Company shall be a vested interest and such poles or structures shall be removed or modified by the Company at its own expense whenever the City Council or its designated representative determines that the public convenience would be enhanced thereby.
2. Where poles or other wire-holding structures already existing in use in serving the City are available for use by Company, but it does not make arrangements for such use, the City Council may require the Company to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Company are just and reasonable.
3. Where the City or a public utility serving the City desired to make use of poles or other wire-holding structures of the Company cannot be reached, the City Council may require the Company to permit such use for such consideration as is just and reasonable and upon such terms as the Council determines the use would enhance the public convenience and would not unduly interfere with the Company’s operations.
S. Rates
1. Company shall at all times maintain on file with the City Auditor a schedule setting forth all rates and charges to be made to subscribers for basic CATV service, including installation charges.
2. During the term hereof, the City may regulate rates only if authorized by Federal Law to do so or by Federal Communications Commission regulations and then such regulation shall only be in accordance with the provisions of such law or regulations.
3. In the event that the City has authority to regulate rates, the following procedures shall be used:
a. Before making any changes in the rates and charges to subscribers for basic CATV service, Company shall file in writing with the City Auditor a new proposed rate change at least thirty (30) days in advance of the proposed effective date for such rate change. If the City takes no action to set
245
the proposed rate change for hearing, said proposed rate changes shall become effective upon the expiration of the 30-day notice period.
b. If the Council wishes to hold a hearing on the proposed rate increase, the hearing shall be held within forty-five (45) days of the filing of the proposed rate increase by the Company. Following the hearing, the Council shall take final action on the proposed increase within thirty (30) days.
4. Any rate subject to regulation under the above provisions may be increased without the approval of the City, at the discretion of Company by an amount not to exceed five percent (5%) per calendar year. In addition, Company shall have the right to pass along to subscribers state and local sales taxes, programming cost increases and copyright fee increases.
5. The monthly rate set forth in subsection 1 above shall be payable in advance.
6. The Company shall not discriminate in rates between customers of the same category except to the extent permitted by the Cable Communications Policy Act of 1984 and Federal Communications Commission regulations.
T. Miscellaneous
1. Company’s technical ability, financial condition, and legal qualifications, were considered and approved by the Council in a full public proceeding which afforded reasonable notice and a reasonable opportunity to be heard.
2. Complaints regarding the quality of service, equipment malfunctions and similar matters shall first be directed to Company’s office. Should Company fail to satisfy a Complaint, it may then be directed to the Auditor for investigation. The complaining party and Company shall be afforded a reasonable opportunity to present written statements of their position. The Auditor shall attempt to resolve the Complaints and, if this cannot be achieved, he or she shall submit a recommendation to the City Council, which shall either (1) dismiss the Complaint, or (2) specify corrective steps to be taken by Company. Approval from the Council’s action may be made to the appropriate judicial or administrative forum.
246
U. Modification of Obligations
In addition to any other remedies provided by law or regulation, Company’s obligations under this Ordinance may be modified, at its request, in accordance with Section 625 of Cable Communications Policy Act of 1984 as it now exists, or as hereinafter amended.
V. Revocation
1. City’s Right to Revoke. City reserves the right, in its sole discretion, to terminate and cancel the Franchise and all rights and privileges of the Franchise in the event;
a. Company violates any material provision of the Franchise;
b. Company practices any fraud or deceit upon City;
c. Company is adjudged bankrupt;
d. Company misrepresents a material fact in the application for, negotiation of or administration of the Franchise.
2. Procedures for Revocation and Termination.
a. City shall provide Company with a written notice of the cause for termination and its intention to terminate the Franchise and shall allow the Company a minimum of thirty (30) days after service of the notice I which to correct the violation.
b. Company shall be provided with an opportunity to be heard at a public hearing before the City Council prior to the termination of the Franchise. The City shall hear any persons interested therein, and shall determine whether or not any failure, refusal, or neglect to correct the violation by the Company was without reasonable cause.
c. If such failure, refusal, or neglect by Company to comply within such times was with reasonable cause, City shall direct Company to comply within such time and manner and upon such terms and conditions as are reasonable.
d. If City shall determine such failure, refusal, or neglect by Company was without reasonable cause, then City may, by Resolution, declare that the Franchise of Company shall be terminated unless there is compliance by Company within such reasonable period as City may fix.
247
W. Foreclosure and Receivership
1. Foreclosure. Upon the foreclosure or other judicial sale of all or a part of System, Company shall notify City of such fact an such notification shall be treated as a notification that a change in control of Company has taken place, and the provisions of the Franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer of change in ownership occurred.
2. Receivership.
a. City shall have the right to cancel the Franchise one hundred twenty (120) days after appointment of a receiver or trustee to take over and conduct the business of Company, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
1. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of the Franchise and remedied all defaults thereunder; and
2. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement duly approved by the Court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the Franchise.
b. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the Company, or any part thereof, City may serve notice of termination upon the Company and the successful bidder at such sale, in which event the Franchise herein granted and all rights and privileges of the Company hereunder shall cease and terminate thirty (30) days after service of such notice, unless:
1. City shall have approved the transfer of this Franchise; and
2. Such successful bidder shall have covenanted and agreed with City to assume and be bound by all the terms and conditions of this Franchise.
248
X. Severability
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court or competent jurisdiction, or is superseded or preempted by Federal Communications Commission regulation, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.
Y. Written Notice
All notices, reports, or demands required to be given in writing under the Franchise shall be deemed to be given when delivered personally to any officer of Company or City, or when forty-eight (48) hours have elapsed after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid, addressed to the party to which notice is being given, as follows:
If to Company: Midcontinent Cable Systems Co. of North Dakota
P.O. Box 910
Aberdeen, SD 57402-0910
If to City: City Auditor
City of Center
P.O. Box 76
Center, ND 58530
Such addresses may be changed by either party upon notice to the other party given as provided in this section.
Z. Acceptance
1. Acceptance Procedure.
a. Company shall accept the Franchise within thirty (30) days of the effective date of this Ordinance unless the time is extended by the City. Upon acceptance of the Franchise, Company shall be bound by all its terms and conditions.
b. With its acceptance, Company shall deliver to City true and correct copies of its Articles of Incorporation and corporate resolution authorizing the acceptance of the Franchise. Such resolution shall describe the officers authorized to execute the acceptance on behalf of Company.
249
c. All insurance certificates required of Company by the Franchise shall be delivered with the acceptance, unless the time for delivery is extended by City.
d. In the event the Franchise is not accepted by Company within thirty (30) days of the effective date of this Ordinance, the Franchise shall, at the option of the City, be declared void, and if so declared, City shall have no further obligations to Company and Company shall have no claim in law or equity against City nor shall the City have any claims against Company.
250
CHAPTER FIFTEEN
BUILDING CODE
ARTICLE 1 – General Building Code
15.0101 Adoption of Code
15.0102 Amendments, Deletions, Additions to Code
15.0103 Clarification of Code
15.0104 Fees
251
CHAPTER FIFTEEN
BUILDING CODE
ARTICLE I – General Building Code
15.0101 Adoption of Code
The erection, construction, enlargement, alteration, repair, moving, removal, demolition, conversion, occupancy, equipment, uses, height, area and maintenance of buildings or structures in the City shall meet with the provisions of the rules and regulations of the North Dakota State Building Code and any future updates and amendments to that code, a copy of which is on file with the City Auditor. That code is hereby adopted and made a part of this chapter by reference with the exception of the following sections affecting local conditions in the City.
15.0102 Amendments, Deletions, Additions to Code
Amendments, deletions, or additions to the code may be made from time to time by the City Council by amendment of this Ordinance.
15.0103 Clarification of Code
For the purpose of clarifying the Building Code adopted above:
1. “Municipality” or “City” shall mean the City of Center.
2. Any reference to fire limits within the City shall mean the fire limits set out in Chapter Four.
15.0104 Fees
Fees under the Building Code shall be as follows:
(Note: A suggested building permit fee schedule can be found in the North Dakota State Building Code. For the current version, contact the North Dakota Division of Community Services.)
252
CHAPTER SIXTEEN
ELECTRICAL CODE
ARTICLE 1 - Adoption of Electrical Code
16.0101 Electrical Code Adopted
ARTICLE 2 - Permits
16.0201 Permit Required
16.0202 Permit - Application for
16.0203 Permit - Grant of
16.0204 Work by Licensed Electrician
16.0205 Work by Licensed Electrician - When Not Required
16.0206 Uses of License by Another
16.0207 Return of Permit - Work Completed
16.0208 Inspection of Work
ARTICLE 3 - Supervision of Work
16.0301 Supervision of Work
16.0302 Powers
16.0303 Existing Installations
16.0304 Defective Work
253
CHAPTER SIXTEEN
ELECTRICAL CODE
ARTICLE 1 – Adoption of Electrical Code
16.0101 Electrical Code Adopted
There is hereby adopted the rules for electrical wiring and equipment as adopted by the State Electrical Board and any future updates, and amendments to those rules, a copy of which is on file in the office of the City Auditor of the City, and the same is hereby adopted as fully as if it were set out at length herein with the following exceptions: None at the time of adoption of this Ordinance.
ARTICLE 2 – Permits
16.0201 Permit Required
No person shall begin any electrical work for which a permit is required until that person has made application for a permit to the city building inspector or City Auditor and the permit has been granted. All electrical work shall be performed in strict compliance with the laws of the State of North Dakota, and the provisions of this article, together with such rules and regulations as the City shall make from time to time for the execution of the same.
16.0202 Permit - Application For
Any person desiring to perform any electrical work within the corporate limits shall make application for a permit to carry on such work. Application shall be in a form containing such information regarding the proposed work, as the City shall prescribe.
16.0203 Permit - Grant of
When, after due consideration and examination, it appears that the provisions of this article are complied with, the permit asked for shall be issued.
16.0204 Work by Licensed Electrician
All electrical work hereafter to be installed in any building within the corporate limits, shall be undertaken and executed only by persons holding a master electrician’s license or a Class B electrician’s license where applicable as provided in the laws of the State of North Dakota, and have given a surety bond in the sum of one thousand ($1,000.00) Dollars approved by the City Council, for
254
the execution of all work in conformity with the laws of the State of North Dakota, and the provisions of this article.
16.0205 Work by Licensed Electrician - When Not Required
No permit or application for a permit shall be required for the installation of electrical wiring for electrical installations made upon their own property by public service corporations, which hold franchises from the City for the manufacture and distribution of electric power.
16.0206 Uses of License by Another
No person holding a master electrician’s license or a Class B electrician’s license shall allow the use of his name, or any permit granted to him, by any other person.
16.0207 Return of Permit – Work Completed
Within five (5) days after the completion of any electrical work, the permit under which the work was executed shall be returned by the holder thereof to the city inspector or City Auditor with a notation thereon of such completion.
16.0208 Inspection of Work
Upon completion of the work, which has been authorized by the issuance of an electrical permit, it shall be the duty of the master electrician to request an inspection of his work by the city inspector. Such inspection shall be requested and conducted before the electrical work is covered by other building components.
In a case where such work includes a new or altered electrical service, the utility company shall not make any connection unless the service entrance bears a notice signed by the city inspector that said wiring has been inspected and approved by the city inspector.
ARTICLE 3 – Supervision of Work
16.0301 Supervision of Work
All electrical installations now existing or hereafter to be made, altered or repaired in or upon any building in the City shall be under the supervision of the city inspector who shall require such work to comply with this article and City ordinances. (NOTE: NDCC 43-09-13.2 requires a person employed by the City to inspect electrical installations to be licensed as a journeyman or master electrician.)
255
16.0302 Powers
The city inspector shall have the right during reasonable hours to enter any building in the discharge of duties, or for the purpose of making any inspection or test of the electrical installation or electrical equipment contained therein, and is hereby empowered to disconnect or order the discontinuance of electrical service to any electric wiring or equipment found to be defectively installed or otherwise not in conformity with the provisions of this article or equipment shall have been made safe.
16.0303 Existing Installations
All existing electrical installations and devices on any premises or upon any building or structure in the City shall be subject to inspection by the city inspector and if in the opinion of the city inspector a hazard exists the owner shall be notified with an order requiring that the hazard be corrected. In the case where the owner fails to comply with the city inspector’s order, the service to the premises, structure or building shall be disconnected.
16.0304 Defective Work
The inspector is hereby given authority to order the removal and replacement, or the alteration of any installation or portion thereof for which a permit has been obtained, should be upon inspection of the same find it to have been executed in violation of any of the provisions of this article. It shall thereafter be unlawful for any person in any way to use such installation, or to supply the power thereto, until the same shall have been made to conform to the provisions of this article. No permit for any other work shall be issued to any applicant therefore who has executed any work in violation of the provisions of this article until such work shall have been made to conform thereto.
256
CHAPTER SEVENTEEN
PERSONNEL POLICIES
ARTICLE 1 – Personnel Policies and Procedures
17.0101 Adoption of Policies
17.0102 Amendments to Policies
257
CHAPTER SEVENTEEN
PERSONNEL POLICIES
ARTICLE 1 – Personnel Policies and Procedures
17.101 Adoption of Policies
The personnel policies and procedures of the City shall be as set out in the City Personnel Policy Manual, a copy of which is on file with the City Auditor. Those policies are hereby adopted and made a part of this chapter by reference.
17.0102 Amendments to Policies
Amendments, deletions or additions to the City Personnel Policy Manual may be made from time to time by resolution of the City Council.
258
CERTIFICATE
STATE OF NORTH DAKOTA )
) ss.
COUNTY OF OLIVER )
The undersigned City Auditor of the City of Center, hereby certifies to be the City Auditor of the City of Center, and as such is the custodian of the Ordinance Book of the City;
It is further certified that the foregoing is a true and accurate copy of the revised ordinances of 2005, duly enacted by the City Council of the City of Center,
the first reading which was had on ________________________
and the second reading and final passage had at the regular meeting held on __________________________ and passed on a roll call vote as shown in the records kept of said meeting.
Dated this _____ day of ____________________, 20___.
________________________________
Ellen Lange
City Auditor
City of Center, North Dakota
259
City of Center
North Dakota
Ordinances Adopted:
November 2005
i
ENACTING ORDINANCE
ORDINANCE NO. 1
Adopting the Revised Ordinances of the City of Center, North Dakota, and repealing all ordinances previously adopted with certain exceptions.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CENTER, NORTH DAKOTA:
Section 1. CITY OF CENTER REVISED ORDINANCES OF 2005. This ordinance and the ordinances hereby adopted shall be known and cited as the Center Revised Ordinances of 2005.
Section 2. ENACTMENT. The Center Revised Ordinances of 2005, consisting of Chapters I through XVII, an original copy of which has been authenticated by the original signatures of the City’s chief executive officer and auditor and which original is on file in the office of the City Auditor, is hereby adopted as the Ordinances of the City of Center.
Section 3. REPEAL. All ordinances of the City adopted prior to the date of this enacting ordinance are hereby repealed except the following ordinances, which shall continue in full force and effect regardless of the fact that they are herein omitted:
1. All existing ordinances granting franchises, if omitted from these revised ordinances.
2. All existing ordinances creating contract obligations on the part of the City, which obligations shall remain binding until fully performed by the City.
3. All of the existing ordinances levying taxes for any years under the provisions of any law relating to the issuance of revenue bonds, municipal bonds, warrants, certificates of indebtedness, or other municipal obligations, whether general or special.
4. All salary and appropriation ordinances.
5. Any and all other ordinances adopted in said Center Revised Ordinances of 2005 by reference, although the same are not set forth in full therein.
6. All existing ordinances establishing, extending or reducing the city limits of the City, if omitted from these revised ordinances.
ii
The incorporation herein of any of the ordinances of the City of Center granting franchises shall not operate to repeal the same in their original form nor to extend the term of any franchise beyond that fixed in that ordinance granting the same which is reenacted herein.
Section 4. EXISTING LICENSES AND PERMITS. All licenses and permits issued prior to the date on which this ordinance becomes effective shall continue in force for the remainder of the term for which the same were issued, without additional fees, but all licensees and permittees shall be governed by the provisions of the Center Revised Ordinances of 2005 for the remainder of the terms of said licenses and permits, in the same manner and to the same extent as if said licenses and permits had been issued under the provisions of the Center Revised Ordinances of 2005.
Section 5. NEW LICENSES AND PERMITS. In the case of any license or permit not heretofore required and appearing for the first time in the Center Revised Ordinances of 2005, such license or permit shall be secured on or before the first day of the first month following the effective date of this ordinance, and the first fee therefore shall be pro-rated for the remainder of that term thereof on a monthly basis, provided that the minimum fee for any such new license or permit shall be $1.00.
Section 6. INVALIDITY OF PART. If any section, subsection, sentence, clause or phrase of these ordinances is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of any other section, subsection, sentence, clause, phrase or portion thereof. The City Council hereby declares that it would have passed these ordinances and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional.
Section 7. EFFECTIVE DATE. This ordinance shall be in full force and effect from and after its final passage and approval, and without publication.
_____________________________________
Richard Zarr, Mayor
ATTEST:
____________________________________
Ellen Lange, City Auditor
CITY SEAL
iii
First Reading: October 3, 2005
Second Reading and Final Passage: November 7, 2005
iv
TABLE OF CONTENTS
CHAPTER ONE – GOVERNMENT ORGANIZATION ....................................... 1
ARTICLE 1 - Jurisdiction .......................................................................... 4
ARTICLE 2 - City Council – Board of City Council ................................... 5
ARTICLE 3 - Elective Officers .................................................................. 6
ARTICLE 4 - Elective Officers Other than City Council ............................ 8
ARTICLE 5 - Appointive Officers .............................................................. 9
ARTICLE 6 - Special Provisions Regarding City Officers ....................... 11
ARTICLE 7 - Purchasing and Disposition of Property ............................ 14
ARTICLE 8 - Municipal Elections ........................................................... 15
ARTICLE 9 - Records Management Policy ............................................ 20
CHAPTER TWO – ORDINANCES ................................................................... 21
ARTICLE 1 - Procedure ......................................................................... 22
CHAPTER THREE – PUBLIC PLACES AND PROPERTY ............................. 26
ARTICLE 1 - Construction and Repair ................................................... 28
ARTICLE 2 - Use and Care of Streets, Sidewalks and Public Places .... 31
ARTICLE 3 - Unclaimed and Abandoned Property ................................ 37
ARTICLE 4 - House Numbering ............................................................. 39
CHAPTER FOUR – FIRE PROTECTION AND PREVENTION ....................... 41
ARTICLE 1 - Fire Limits ......................................................................... 42
ARTICLE 2 - Fires in Public Places ........................................................ 43
ARTICLE 3 - Firearms, Fireworks and Explosives ................................. 44
ARTICLE 4 - Adoption of Electrical Code ............................................... 45
ARTICLE 5 - Penalty for Violation of this Chapter .................................. 45
CHAPTER FIVE – POLICE DEPARTMENT .................................................... 46
ARTICLE 1 - Organization and Regulations ........................................... 47
ARTICLE 2 - Powers and Duties ............................................................ 48
ARTICLE 3 - Miscellaneous ................................................................... 49
CHAPTER SIX – ZONING – LAND USE PLANNING ...................................... 50
ARTICLE 1 - Planning and Zoning Commission..................................... 51
ARTICLE 2 - Separate Ordinance Volume ............................................. 51
CHAPTER SEVEN - WATER AND SEWER .................................................... 52
ARTICLE 1 - Utility Established .............................................................. 54
ARTICLE 2 - Water Service ................................................................... 64
ARTICLE 3 - Regulation of Sewer Use .................................................. 70
ARTICLE 4 - Sewer Surcharge .............................................................. 78
ARTICLE 5 - Adoption of State Plumbing Code ..................................... 81
ARTICLE 6 - General Penalty Provisions ............................................... 82
v
CHAPTER EIGHT - BUSINESS REGULATIONS AND LICENSES ................. 83
ARTICLE 1 - General Provisions ............................................................ 86
ARTICLE 2 - Transient Merchants ......................................................... 88
ARTICLE 3 - Hawkers and Peddlers ...................................................... 92
ARTICLE 4 - Runners, Solicitors and Canvassers ................................. 94
ARTICLE 5 - Alcoholic Beverages .......................................................... 97
ARTICLE 6 - Shows, Carnivals and Circuses ...................................... 107
ARTICLE 7 - Validity ........................................................................... 108
ARTICLE 8 - Penalty ............................................................................ 108
CHAPTER NINE – TRAFFIC ......................................................................... 109
ARTICLE 1 - Definitions ....................................................................... 114
ARTICLE 2 - Traffic Administration ...................................................... 114
ARTICLE 3 - Enforcement and Obedience to Traffic Regulations ........ 115
ARTICLE 4 - Traffic Control Devices .................................................... 118
ARTICLE 5 - Speed Regulations and Care Required ........................... 120
ARTICLE 6 - Turning Movements ........................................................ 125
ARTICLE 7 - Special Stops .................................................................. 125
ARTICLE 8 - Operators ........................................................................ 127
ARTICLE 9 - Miscellaneous Driving Rules ........................................... 127
ARTICLE 10 - Pedestrians’ Rights and Duties ....................................... 135
ARTICLE 11 - Regulations for Motorcycles ............................................ 138
ARTICLE 12 - Regulations for Bicycles .................................................. 140
ARTICLE 13 - Angle Parking .................................................................. 141
ARTICLE 14 - Stopping, Standing or Parking Prohibited in Specific Places142
ARTICLE 15 - Reserved Parking Areas ................................................. 147
ARTICLE 16 - Time Limit Parking Zones ............................................... 147
ARTICLE 17 - Equipment of Vehicles .................................................... 148
ARTICLE 18 - Lighted Lamps Required ................................................. 151
ARTICLE 19 - Regulating the Kinds of Classes of Traffic on Certain Roads152
ARTICLE 20 - Criminal Traffic Violations ............................................... 152
ARTICLE 21 - Disposition of Traffic Offenses ........................................ 156
ARTICLE 22 - Sections Not Adopted ..................................................... 161
ARTICLE 23 - Filing of Ordinance .......................................................... 161
ARTICLE 24 - Adoption of Amendments by Reference .......................... 161
ARTICLE 25 - Severability Clause ......................................................... 161
ARTICLE 26 - Penalties ......................................................................... 162
CHAPTER TEN – HEALTH ........................................................................... 163
ARTICLE 1 - Board of Health ............................................................... 164
ARTICLE 2 - Local Health Officer ......................................................... 164
ARTICLE 3 - Garbage, Refuse, Rubbish .............................................. 164
ARTICLE 4 - Dangerous Buildings ....................................................... 166
APPENDIX 10-1 Notice of Hearing…………………………………………… 171
APPENDIX 10-2 Notice and Order…………………………………………… 172
APPENDIX 10-3 Warning……………………………………………………… 173
vi
CHAPTER ELEVEN - ANIMALS AND FOWL ................................................ 174
ARTICLE 1 - General Regulations ....................................................... 175
ARTICLE 2 - Dogs and Cats ................................................................ 177
CHAPTER TWELVE - PUBLIC NUISANCES ................................................ 179
ARTICLE 1 - Sanitary Nuisances ......................................................... 181
ARTICLE 2 - Smoke - Gases ............................................................... 182
ARTICLE 3 - Radio Interference and Noise Control ............................. 183
ARTICLE 4 - Automobiles - Personal Property .................................... 184
ARTICLE 4.1 - Property Found on Private Lands………………………… 186
ARTICLE 5 - Noxious Weeds ............................................................... 192
CHAPTER THIRTEEN – OFFENSES ............................................................ 194
ARTICLE 1 - In General ....................................................................... 196
ARTICLE 2 - Offenses Against Persons ............................................... 197
ARTICLE 3 - Offenses Against Property .............................................. 199
ARTICLE 4 - Offenses Against Public Order, Health, Safety………….
and Sensibilities.............................................................. 211
ARTICLE 5 - Sentencing ...................................................................... 222
ARTICLE 6 - Penalties ......................................................................... 231
CHAPTER FOURTEEN – FRANCHISE ........................................................ 232
ARTICLE 1 - Grant of Franchises ......................................................... 233
CHAPTER FIFTEEN - BUILDING CODE ...................................................... 250
ARTICLE 1 - General Building Code .................................................... 251
CHAPTER SIXTEEN - ELECTRICAL CODE ................................................. 252
ARTICLE 1 - Adoption of Electrical Code ............................................. 253
ARTICLE 2 - Permits ............................................................................ 253
ARTICLE 3 - Supervision of Work ........................................................ 254
CHAPTER SEVENTEEN - PERSONNEL POLICIES .................................... 256
ARTICLE 1 - Personnel Policies and Procedures ................................ 257
CERTIFICATE ............................................................................................... 258
1
CHAPTER ONE
GOVERNMENT ORGANIZATION
ARTICLE 1 - Jurisdiction
1.0101 Over Persons and Property
1.0102 Defining City Limits
1.0103 Division of City into Precincts
1.0104 City Fines and Penalties Limited
ARTICLE 2 - City Council - Board of City Council
1.0201 Regular Meetings
1.0202 Special Meetings
1.0203 Meeting to be Public - Journal of Proceedings to be Kept
1.0204 Quorum
1.0205 Reconsidering or Rescinding Votes at Special Meeting
1.0206 Rules and Order of Business
ARTICLE 3 - Elective Officers
1.0301 City Council - Who Constitutes
1.0302 Term of Office of Council Members
1.0303 Mayor - Qualifications - Term
1.0304 When President and Vice President of Council are Elected
1.0305 Vacancies on Council or in Office of Mayor - How Filled
1.0306 Absence or Disability of Mayor - Who to be Acting Mayor
1.0307 Mayor to Preside at Council Meetings - Voting Power of Mayor
1.0308 Mayor May Remove Appointive Officers - Reasons for Removal to be Given
1.0309 Mayor May Suppress Disorder and Keep Peace
1.0310 Mayor to Perform Duties Prescribed by Law – Enforce Laws and Ordinances
1.0311 Inspection of Books, Records and Papers of City by Mayor
1.0312 Ordinance or Resolution Signed or Vetoed by Mayor
1.0313 Message to Council
1.0314 Police Chief and Policemen Appointed by Mayor
1.0315 Mayor May Administer Oath
ARTICLE 4 - Elective Officers Other than City Council
1.0401 Municipal Judge
1.0402 Report to the City Council - Receipts
1.0403 Court Hours
1.0404 Duties of Municipal Judge
2
ARTICLE 5 - Appointive Officers
1.0501 Appointive Officers
1.0502 Term of Appointive Officers
1.0503 Officers Commissioned by Warrant - City Auditor to Receive Certificate of Appointment
1.0504 General Duties of City Auditor
1.0505 General Duties of City Attorney
1.0506 General Duties of Other Appointive Officers
ARTICLE 6 - Special Provisions Regarding City Officers
1.0601 Bonds of Municipal Officers and Employees
1.0602 Oaths of Municipal Officers
1.0603 Salaries of Elected Officers and Employees Fixed by Ordinance or Resolution–Diminution of Officers’ Salaries During Term Prohibited
1.0604 Salaries of Appointive Officers and Employees
1.0605 Meals and Lodging - Amount Allowed
1.0606 Personal Interest in Contract by Public Officer - Penalty
1.0607 Retiring Officer to Turn Over Books
1.0608 Administrative Duties, Powers, and Privileges of Officers
1.0609 Obstructing a Public Official - Prohibited
ARTICLE 7 - Purchasing and Disposition of Property
1.0701 Competitive Bidding Requirements
1.0702 Procedure
1.0703 Open Market Purchases - Emergency
1.0704 Accounts Against City to be in Writing
1.0705 Conveyance, Sale, Lease, or Disposal of Property
1.0706 Real Property Transfer Requirements
ARTICLE 8 - Municipal Elections
1.0801 Qualified Electors in Municipal Elections - Restrictions
1.0802 Polling Places - Polls Open - Notice
1.0803 Designation of Polling Places for Municipal Elections
1.0804 Compensation of Inspectors, Judges and Clerks at Municipal Elections
1.0805 Reference to Party Ballot or Affiliation in Petition of Candidate for Municipal Office Prohibited
1.0806 Petition for Nomination of Elected Official in Municipalities - Signatures Required - Contents
1.0807 Ballots in Municipalities - Makeup
1.0808 Clerks Appointed to Fill Vacancies - Oath - Powers and Duties of Judges and Clerks of Municipal Elections
3
1.0809 Counting Ballots - Returns - Canvass of Returns by City Council of Municipality - Agreement with the County
1.0810 Municipal Elections to be Governed by Rules Applicable to County Elections - Absent Voting
1.0811 City Auditor to Notify of Election or Appointments
1.0812 New Election Upon Failure to Elect
1.0813 Special Elections Conducted in Same Manner as General Elections
1.0814 Highest Number of Votes Elects in Municipal Election - Procedure on Tie Vote
ARTICLE 9 - Records Management Policy
1.0901 Adoption of Policy
4
CHAPTER ONE
GOVERNMENT ORGANIZATION
ARTICLE 1 - Jurisdiction
1.0101 Over Persons and Property
The jurisdiction of the City of Center, North Dakota, extends to all persons, places and property within its boundaries and such extra-territorial jurisdiction as is granted to it under the provisions of the North Dakota Century Code (hereafter referred throughout these Ordinances as “NDCC”) and subsequent amendments.
1.0102 Defining City Limits
There shall be included within the municipal limits of the City of Center, N.D., all areas duly platted and recorded as being within said City; all lots and blocks shall also include all streets, alleys and public ways included within the area and adjacent thereto which are defined as within the confines of the city limits. The City Council shall have jurisdiction within the corporate city limits and over any common or public grounds belonging to the City, and in and over all places within one-half mile of the municipal limits for the purpose of enforcing health ordinances and regulations, and police regulations and ordinances adopted to promote the peace, order, safety and general welfare of the municipality.
1.0103 Division of City into Precincts
There shall be one precinct within the City to be known and designated as: The City of Center Precinct and said precinct shall consist of all that part of the City which lies within the boundaries hereinafter set forth for said precincts and the polling place in said precinct shall be located at the site hereinafter set forth, namely: The Center Civic Center, unless alternate polling places are established by the City Council to facilitate cooperative elections with Oliver County.
1.0104 City Fines and Penalties Limited
The provisions of NDCC Section 40-05-06 and all subsequent amendments are hereby incorporated by reference in this ordinance.
This section shall not be construed to prohibit the use of the sentencing alternatives, other than a fine or imprisonment, provided by NDCC Section 12.1-32-02 for the violation of a City ordinance, nor shall this section limit the use of deferred or suspended sentences in accordance with subsections 3 and 4 of NDCC section 12.1-32-02.
5
ARTICLE 2 - City Council – Board of City Council
1.0201 Regular Meetings
The City Council shall meet regularly at the Center Civic Center on the first Monday of each month at the hour of 7:00 o’clock p.m. Central Time unless some other time and place shall be specifically fixed by the Council. The Council shall meet in addition thereto, as often as required by NDCC Section 40-08-10.
1.0202 Special Meetings
Special meetings may be called at any time by the mayor or any two (2) members of the City Council to consider matters mentioned in the call of such meetings. Notice of any special meeting shall be given to each member of the City Council at least two hours before the time of the meeting.
1.0203 Meeting to be Public - Journal of Proceedings to be Kept
All meetings of the City Council shall be open to the public, and a journal of its proceedings shall be kept. Notice of the regular meeting time or of special meetings shall be given as provided by NDCC Section 44-04-20 and subsequent amendments.
1.0204 Quorum
The provisions of NDCC Section 40-06-03 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
A majority of the members of the City Council of a municipality shall constitute a quorum to do business but a smaller number may adjourn from time to time. The City Council may compel the attendance of absentees under such penalties as may be prescribed by ordinance.
1.0205 Reconsidering or Rescinding Votes at Special Meeting
The provisions of NDCC Section 40-06-04 and all subsequent amendments are hereby incorporated by reference in this ordinance.
No vote of the City Council of a municipality shall be reconsidered or rescinded at a special meeting unless there is present at such special meeting as large a number of members as were present when such vote was taken.
1.0206 Rules and Order of Business
6
Rules and order of business for the parliamentary procedure of the City Council shall be by Robert’s Rules of Order.
ARTICLE 3 - Elective Officers
1.0301 City Council - Who Constitutes
The City Council of the City shall be the City Council, which shall be composed of the mayor and four council members. The mayor and council members shall be elected as provided by law.
1.0302 Term of Office of Council Members
Council members shall be qualified electors and residents of the City, shall be elected at large, and shall hold office for four years and until their successors are elected and qualified. Terms of council members shall be arranged so that one-half of the council members, as nearly as practicable, are elected in any one election.
1.0303 Mayor - Qualifications - Term
The chief executive officer of the City is the mayor. The mayor shall be a qualified elector within the City and shall hold office for four years and until a successor is elected and qualified.
1.0304 When President and Vice President of Council are Elected
The provisions of NDCC Section 40-08-11 and all subsequent amendments are hereby incorporated by reference in this ordinance. At the organizational meeting in each even numbered year, the members of the City Council shall elect from their number a president and vice president who shall hold their respective offices until their successors are elected at the organizational meeting following the next biennial election.
1.0305 Vacancies on Council or in Office of Mayor - How Filled
If a vacancy occurs in the office of council member by death, resignation or otherwise, the City Council may call a special city election to fill such vacancy for the unexpired term, or may, after fifteen days of the date of such vacancy appoint a qualified elector of the City to fill such vacancy until the next city election, at which election the unexpired term shall be filled. Upon petition of five percent of the electors, as determined by the total number of votes cast in the last general city election, the council shall call a special election to fill a vacancy occurring more than six months before the next city election, if the petition has been submitted days and before four p.m. of the fifteenth day following the date of such vacancy or of the vacancy being filled by appointment. If the petition is
7
mailed, it shall be in possession of the Council or its representative before four p.m. on the fifteenth day after the vacancy occurs or after the vacancy was filled by appointment.
If a vacancy occurs in the office of mayor, the City Council may call a special city election to fill such vacancy for the unexpired term or may, after fifteen days from the date of such vacancy, elect one of its members to act as mayor, the member so elected shall possess all of the rights and powers of the mayor until the next election and until a mayor is elected and qualified. Upon petition of five percent of the electors, as determined by the total number of votes cast in the last general city election, the council shall call a special election to fill a vacancy occurring more than six months prior to the next city election, provided such petition is submitted within fifteen days of the date of such vacancy. During the interim between the date when a vacancy occurs and election and qualification of a successor, the president of the City Council shall be acting mayor.
1.0306 Absence or Disability of Mayor - Who to be Acting Mayor
During the absence of the Mayor from the City or during his temporary disability, the President of the City Council shall be the acting mayor and shall possess all of the powers of the Mayor. In the absence or disability of the Mayor and the President of the City Council, the Vice President of the City Council shall be the acting mayor.
1.0307 Mayor to Preside at Council Meetings - Voting Power of Mayor
The Mayor shall preside at all meetings of the City Council, but shall not vote except in case of a tie, when he shall cast the deciding vote.
1.0308 Mayor May Remove Appointive Officers - Reasons for Removal to be Given
The Mayor may remove any officer appointed by him whenever he is of the opinion that the interests of the City demands such removal, but he shall report the reasons for such removal to the council at its next regular meeting.
1.0309 Mayor May Suppress Disorder and Keep Peace
The Mayor may exercise within the city limits the powers conferred upon the sheriff to suppress disorder and keep the peace.
1.0310 Mayor to Perform Duties Prescribed by Law - Enforce Laws and Ordinances
8
The Mayor shall perform all duties prescribed by law or by the city ordinances, and shall see that the laws and ordinances are faithfully executed.
1.0311 Inspection of Books, Records and Papers of City by Mayor
The Mayor, at any time, may examine and inspect the books, records and papers of any agent, employee or officer of the City.
1.0312 Ordinance or Resolution Signed or Vetoed by Mayor
The Mayor shall sign or veto each ordinance or resolution passed by the Council.
1.0313 Message to Council
The Mayor annually and from time to time shall give the Council information relative to the affairs of the City and shall recommend for consideration such measures that he may deem expedient.
1.0314 Police Chief and Policemen Appointed by Mayor
The Mayor may appoint any number of policemen which he and the City Council may deem necessary to preserve the peace of the City, and he shall appoint one of the number as Chief of Police. Such appointment shall be subject to approval of the Council.
1.0315 Mayor May Administer Oath
The Mayor of the City may administer oaths and affirmations.
ARTICLE 4 - Elective Officers Other than City Council
1.0401 Municipal Judge
There shall be elected each four years a municipal judge who shall hold office until a successor is elected and qualified. The municipal judge shall perform all the duties prescribed by law and the ordinances of this City. The municipal judge shall receive a monthly salary as full compensation for all services rendered.
1.0402 Report to the City Council - Receipts
9
At the end of each month, the municipal judge shall make and file with the City Auditor a written report under oath showing an account of all fees, fines, costs, forfeitures, and any other monetary consideration collected by the court during the preceding month and showing the actions in which the fees were collected. The municipal court shall pay the amount of fees, fines, costs, forfeitures, and any other monetary consideration collected to the city treasury at the end of each month. The judge’s monthly salary may not be paid for any month until the judge has complied with this section. This report will be accompanied by the duplicate receipt or receipts of the City Auditor for the total amount of the fees and money so collected on behalf of the City.
1.0403 Court Hours
The municipal judge shall be in attendance at municipal court for the transaction of business that may come before him and shall devote the time necessary to handle and dispose of the business coming before him.
1.0404 Duties of Municipal Judge
Additional duties of the municipal judge shall be as provided by the provisions of NDCC Chapter 40-18 and all amendments thereto.
ARTICLE 5 - Appointive Officers
1.0501 Appointive Officers
The mayor, with the approval of the City Council, shall appoint the following officers:
1. City Auditor;
2. City Assessor;
3. City Attorney;
4. City Engineer;
5. Police Chief and Policemen; and
6. Such other officers as the City Council deems necessary and expedient.
The city assessor shall be appointed at the first meeting of the City Council in September of each odd numbered year. All other officers shall be appointed annually at the first meeting of the City Council in November of each year.
The City Council, by majority vote, may dispense with any appointive office and provide that the duties of that office be performed by others.
1.0502 Term of Appointive Officers
10
The term of all appointive officers of the City shall commence the first day of January succeeding their appointment unless otherwise provided by ordinance or determined by the City Council, and such officers shall hold their respective offices for one year, except the City Assessor, whose term shall be two years, and until their successors are appointed and qualified.
1.0503 Officers Commissioned by Warrant - City Auditor to Receive Certificate of Appointment
All officers elected or appointed, except the City Auditor, council members and mayor, shall be commissioned by warrants signed by the auditor and the mayor or president of the City Council. The mayor shall issue a Certificate of Appointment to the auditor.
1.0504 General Duties of City Auditor
The provisions of NDCC Section 40-16-03 and all subsequent amendments thereto are hereby incorporated by reference in this ordinance. It shall be the duty of the City Auditor to issue the calls for all special meetings of the City Council when requested to do so by the mayor or any two (2) members of the City Council. He or she shall also keep a full and complete record of all meetings of the City Council and shall keep a book titled as the “Ordinance Book” and shall record therein at length all ordinances of the City. The Auditor shall also keep a book titled as the “Special Assessment Book” in which he or she shall keep all records of special assessments. All such books shall have full and complete indexes of the contents thereof. The Auditor shall report to the City Council at the end of every month a list of all warrants, interest coupons, bonds or other evidence of indebtedness which may have been redeemed or paid by him during the month and shall duly give to the Council a copy of his receipts therefore. The Auditor shall further handle all correspondence, permits and licenses and shall do and perform each, every and all duties and things prescribed by statutes of this state, or by an ordinance, resolution or proper instruction of the City Council.
1.0505 General Duties of City Attorney
The city attorney shall conduct all the law business of the City and of the departments thereof, and all law business in which the City shall be interested; and shall, when requested, furnish written opinions upon the subjects submitted to him by the City Council or any other department. It shall also be his duty to draft all ordinances, bonds, contracts, leases, conveyances and such other instruments as may be required by the officers of the City; to examine and inspect tax and assessment rolls and all other proceedings in reference to the levying and collection of taxes, and to perform each and every and all duties and things prescribed for him to do by statutes of the state, or by ordinance, resolution or proper instruction of the City Council.
11
1.0506 General Duties of Other Appointive Officers
All other appointive officers shall perform such duties as directed by the City Council, directed by these ordinances or directed or authorized by the laws of the state of North Dakota.
ARTICLE 6 - Special Provisions Regarding City Officers
1.0601 Bonds of Municipal Officers and Employees
The following officers and employees of the City shall be bonded in the sums as hereinafter set forth:
City Auditor $250,000.00
City Manager $ 25,000.00
Municipal Judge $ 25,000.00
City Assessor $ 5,000.00
Said officers or employees shall be bonded in accordance with the provisions of NDCC Section 40-13-02 and Chapter 26.1-21.
1.0602 Oaths of Municipal Officers
Every person appointed to any municipal office, before he enters upon the discharge of the duties thereof, shall take and subscribe the oath of office prescribed for civil officers and, except in the case of the auditor, shall file the same with the City Auditor within 10 days after notice of his election or appointment has been given. The oath of the auditor shall be filed in the office of the county auditor. Refusal to take the oath of office shall also be deemed a refusal to serve and, therefore, a failure to qualify for the office pursuant to NDCC Section 44-02-01. (Source: NDCC Section 40-13-03)
1.0603 Salaries of Elected Officers and Employees Fixed by Ordinance or Resolution – Diminution of Officers’ Salaries During Term Prohibited
Except where otherwise provided by law, any officer or employee of the City is entitled to receive the salary, fees, or other compensation fixed by ordinance or resolution. After having been once fixed, the salary of an officer may not be diminished to take effect during the term for which the officer was elected or appointed.
1.0604 Salaries of Appointive Officers and Employees
12
Salaries of City Appointive Officers and Employees, except as otherwise provided by law, shall be in such sums and amounts as may be, by budget and resolution of the City Council, fixed from time to time.
1.0605 Meals and Lodging - Amount Allowed
Each elective or appointive officer, employee, representative, or agent of this City, or of any of its subdivisions, boards or commissions may make claim and shall upon approval of such claim, be paid as an allowance for meals and lodging while engaged within this State, in the discharge of a public duty away from their normal working and living residence for all or any part of any quarter of a day at the rates specified by state law.
Verifications of claims shall not be required for the first three quarters listed above and only a lodging receipt shall be required for the fourth quarter.
Such persons engaged in travel outside of the state shall not claim a sum in excess of that allowed by state law per day for meals and in addition thereto actual lodging expenses. Verification by receipt for such out-of-state travel expenses shall be required only for lodging expenses claimed. Verification of any other type of expenses not prescribed by this section shall be by receipt.
Any person filing a false claim with the City for mileage or expenses as herein permitted is guilty of an infraction.
1.0606 Personal Interest in Contract by Public Officer - Penalty
No contract for the furnishing of supplies to the City, or buying of property from the City shall be entered into by any officer of the municipality, provided, however, that such contracts may be entered into with an officer of the City, if such contract is unanimously approved by other members of the City Council of the City by a finding unanimously adopted by such other members, and entered in the official minutes of the City Council, to be necessary for the reason that the services or property are not otherwise available at equal cost. No City officer shall refuse or fail to disclose to the governing board to which he or she is a member, any personal interest, direct or indirect, in any contract requiring the expenditure of municipal funds. Any person who shall violate any provision of this section shall be guilty of an infraction and shall, in addition, be subject to removal from office.
1.0607 Retiring Officer to Turn Over Books
Any person having been an officer of the City shall, within five days after notification and request, deliver to his successor in office, all property, books and effects of every description in his possession belonging to the City or
13
appertaining to his office; and upon his refusal to do so, shall be liable for all damages caused thereby, and guilty of an infraction.
1.0608 Administrative Duties, Powers, and Privileges of Officers
Each officer shall:
1. Perform all duties required of his or her office by law or ordinance and such other duties not in conflict as may be required by the City.
2. Be immediately responsible to the City for the effective administration of their departments and all activities assigned thereto.
3. Keep informed as to the latest practices in their particular field and shall inaugurate with approval of the City such new practices as appear to be of benefit to their service and to the public.
4. Submit such reports of activities of their departments as the City may request.
5. Be responsible for the proper maintenance of all City property and equipment used in their departments.
6. Establish and maintain records in sufficient detail so as to furnish all information needed for proper control of department activities and to form a basis for reports to the City.
7. Cooperate with other officers, departments and employees.
8. Have power to direct and supervise all department subordinates.
9. Be available during the hours designated by the City Council.
1.0609 Obstructing a Public Official - Prohibited
Every person who willfully delays or obstructs a public officer in the discharge or attempt to discharge any duty of his office shall be guilty of an infraction.
ARTICLE 7 - Purchasing and Disposition of Property
14
1.0701 Competitive Bidding Requirements
All purchase of and contracts for supplies and contractual services with a cost in excess of one hundred thousand dollars shall be based on competitive bids.
1.0702 Procedure
All supplies and contractual services except as otherwise provided herein, when the estimated cost thereof shall exceed $100,000.00 shall be purchased from the lowest responsible bidder after due notice inviting proposals. Due notice shall be given by advertising for the sale or purchase of the property or service by giving written notice in the official newspaper of the City for three (3) consecutive weeks and the opening of the bids so received not less than 21 days after the first publication thereof. The lowest responsible bidder shall be the bidder who, in addition to price, has the best ability, capacity and skill to perform the contract or provide the service required promptly or within the specified time without delay or interference. There shall also be considered character, integrity, reputation, experience and efficiency of the bidder, the quality of performance of previous contracts, sufficiency of financial resources and previous and existing compliance with state laws and City ordinances.
1.0703 Open Market Purchases - Emergency
When the City Council decides by unanimous vote that an emergency requires the immediate purchase of supplies or contractual services, the purchases may be made in the open market without competitive bidding.
1.0704 Accounts Against City to be in Writing
Accounts, claims and demands against the City for any property or services for which the City shall be liable, shall be made in writing and shall include an itemized statement of the property or services provided.
1.0705 Conveyance, Sale, Lease, or Disposal of Property
Real property belonging to the municipality shall be conveyed, sold, leased or disposed of, only as approved of by a two-thirds vote of all members of the City Council. Instruments affecting such conveyance, sale, lease or disposal shall be valid only when duly executed by the Mayor and attested by the City Auditor. Personal property shall be conveyed by a majority vote of all members of the Council. When the property to be disposed of, whether real or personal, is estimated by the Council to be of a value of less than $2,500.00, such property may be sold at private sale upon the proper resolution of the Council. In all other cases, such property may be sold only at public sale or as provided under NDCC Section 40-11-04.2. Bids for the purchase or lease of real property belonging to
15
the municipality, whether or not advertisement therefore has been made, shall be made directly to the City Council and submitted to the City Auditor, who shall present any and all such bids to the City Council at its next regularly scheduled meeting. When specific statutory provisions contained in the NDCC provide for a procedure which is in conflict with this section, governing the conveyance, sale, lease or disposal of real property, this section shall not apply insofar as it is in conflict with such state law. Said statutory procedures include the following:
1. Lease of airports or landing fields, or portions thereof shall be under authority granted in NDCC Section 2-02-06. Any such lease shall be in compliance with regulations and directives of appropriate federal agencies.
2. Conveyance of right of way for any state highway as provided in NDCC Section 24-01-46.
3. Leasing of oil and gas lands as provided in NDCC Sections 38-09-02 through 38-09-04 and NDCC Sections 38-09-14 through 38-09-20.
4. Conveyance of property to a municipal parking authority as provided in NDCC Section 40-61-05.
5. Lease of public buildings or portions thereof as provided in NDCC Chapter 48-08.
6. Granting of concessions for cafes, restaurants and confectioneries in public buildings or on public grounds as provided in NDCC Chapter 48-09.
7. Granting of right-of-way for a railway, telephone lines, electric light system or a gas or oil pipeline system as provided in NDCC Section 49-09-16.
1.0706 Real Property Transfer Requirements
The provisions of NDCC Sections 40-11-04.1 and 40-11-04.2 and all subsequent amendments are hereby incorporated by reference in this ordinance.
ARTICLE 8 - Municipal Elections
1.0801 Qualified Electors in Municipal Elections - Restrictions
The provisions of NDCC Section 40-21-02 and all subsequent amendments are hereby incorporated by reference in this ordinance.
16
Every resident of a municipality who is qualified to vote therein at general elections may vote at all municipal elections held therein.
1.0802 Polling Places - Polls Open - Notice
The provisions of NDCC Section 40-21-02 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Biennial municipal elections shall be held on the second Tuesday of June in each even numbered year at such place or places as the City Council shall designate. The polls shall be opened and closed as provided by state law for the opening and closing of polls at primary, general and special elections. Thirty days before the filing deadline for candidate names to be printed on the ballot, an official notice of this deadline must be published in the official newspaper as provided by NDCC Section 40-01-09. Ten days notice of the time and place of the election and of the offices to be filled at the election shall be given by the City Auditor by publication in the official newspaper of the City as provided by NDCC Section 40-01-09. The City may enter agreements to hold its elections with the County as provided in NDCC Section 40-21-02.
1.0803 Designation of Polling Places for Municipal Elections
The City Council of the City, at the time of calling any general or special municipal election, or prior to the time of registration for said election, if said registration is required by law, shall by resolution, designate such voting precincts and polling places for said election as it may deem necessary for the conduct of the same, and shall, in giving notice of said election, designate such voting precincts and polling places.
1.0804 Compensation of Inspectors, Judges and Clerks at Municipal Elections
The provisions of NDCC Section 40-21-05 and all subsequent amendments are hereby incorporated by reference in this ordinance.
Each inspector, judge or clerk of any regular or special municipal election shall receive compensation as determined for election officials in NDCC Section 16.1-05-05. The amounts determined to be due election officials at municipal elections shall be paid from the funds of the municipality holding the election. In the event a special municipal election is held on the same date as a statewide, district wide or countywide election, and if the same election officials perform services for both elections, the City shall not be required to pay the elections officials, except for any extra officials necessary for such special municipal election.
17
1.0805 Reference to Party Ballot or Affiliation in Petition of Candidate for Municipal Office Prohibited
The provisions of NDCC Section 40-21-06 and all subsequent amendments are hereby incorporated by reference in this ordinance.
No reference shall be made to a party ballot or to the party affiliation of a candidate in a petition to be filed or in behalf of a candidate for nomination to a public office of the City.
1.0806 Petition for Nomination of Elected Official in Municipalities - Signatures Required - Contents
The provisions of NDCC Section 40-21-07 and all subsequent amendments are hereby incorporated by reference in this ordinance.
A candidate for any public office in the City may be nominated by filing with the City Auditor, at least sixty days and before four p.m. on the sixtieth day prior to the holding of the election, a petition signed by not less than ten percent of the number of qualified electors who voted for that office in the last City election. Qualified electors who sign such a petition shall reside within the ward or precinct in and for which such officer is to be elected, if the election is by wards, or within the corporate limits of the City if the officer is elected at large. If a petition is mailed, it shall be in the possession of the City Auditor before four p.m. on the sixtieth day prior to the holding of the election. In no case shall more than three hundred signatures be required, and such signatures may be on separate sheets of paper. Each qualified elector who signs a petition shall add to the petition the petitioner’s mailing address. If a City election is not held in conjunction with a state or county election, a candidate may be nominated by filing the required petition with the City Auditor at least thirty-three days and before four p.m. on the thirty-third day before the holding of the election.
1.0807 Ballots in Municipalities - Makeup
The provision of NDCC Section 40-21-08 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The City Auditor shall place only the names of the persons nominated upon the ballot. The auditor shall arrange the offices upon the ballot in the order in which they are named in the statutes. The auditor shall determine the arrangement of the names of the candidates upon the ballot by conducting a drawing within five days following the last day for the filing of the nomination papers. The City Auditor shall set the date, time and location for conducting the drawing and shall give advance notice of the drawing to the candidates involved.
18
1.0808 Clerks Appointed to Fill Vacancies - Oath - Powers and Duties of Judges and Clerks of Municipal Elections
The provisions of NDCC Section 40-21-11 and all subsequent amendments are hereby incorporated by reference in this ordinance.
When necessary, the judges of election at a municipal election shall appoint clerks to fill vacancies. The judges and clerks of a municipal election shall take the same oath and have the same powers and authority as judges and clerks of general state elections.
1.0809 Counting Ballots - Returns - Canvass of Returns by City Council of Municipality - Agreement with the County
The provisions of NDCC Section 40-21-12 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The ballots cast in a municipal election shall be counted and the returns of the election prepared by the election board immediately after the closing of the polls. The ballots and the returns of the election shall be returned to the City Auditor under seal before four p.m. on the second day after the election. Thereafter, the City Council of the municipality shall canvass the returns and declare the result of the election and cause a statement thereof to be entered in its books of minutes.
If the City election is held in conjunction with a state or county election, the City Council shall enter into an agreement with the City Council of the county concerning canvassing, the sharing of election personnel, the printing of election materials, the publishing of legal notices and the apportioning of election expenses.
1.0810 Municipal Elections to be Governed by Rules Applicable to County Elections - Absent Voting
The provisions of NDCC Section 40-21-13 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The manner of conducting, voting at, keeping poll lists and canvassing votes at municipal elections, recounts and contests of the results of such elections shall be governed, as nearly as possible and except as otherwise provided in this chapter, by the laws of this state applicable to elections and contests in the case of county officers. Absent voters’ ballots must be available in municipal elections in accordance with the provisions of Chapter 16.1-07 as amended.
19
1.0811 City Auditor to Notify of Election or Appointments
The provisions of NDCC Section 40-21-14 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The City Auditor, within five days after the result of an election is declared or the appointment of an officer is made within the municipality, shall notify each person elected or appointed to municipal office of his election or appointment. Within the same period of time, the City Auditor shall also notify the state Supreme Court of the election or appointment of any municipal judge or alternate judge.
1.0812 New Election Upon Failure to Elect
The provisions of NDCC Section 40-21-15 and all subsequent amendments are hereby incorporated by reference in this ordinance.
If there is a failure to elect an officer required to be elected, the City Council of the municipality may order a new election.
1.0813 Special Elections Conducted in Same Manner as General Elections
The provisions of NDCC Section 40-21-16 and all subsequent amendments are hereby incorporated by reference in this ordinance.
Special municipal elections to fill vacancies or for any other purpose shall be held and conducted by the inspectors and judges of the election, and the returns shall be made in the same form and manner as at regular municipal elections.
1.0814 Highest Number of Votes Elects in Municipal Election - Procedure on Tie Vote
The provisions of NDCC Section 40-21-17 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The person having the highest number of votes for any municipal office shall be declared elected to such office. In case of a tie vote in the election of any municipal officer, a recount must be conducted pursuant to NDCC Section 16.1-16-01. If a recount results in a tie vote, the choice shall be determined by a name draw in the presence of the City Council and in such manner as it shall direct.
20
ARTICLE 9 - Records Management Policy
1.0901 Adoption of Policy
The management of records in the City shall comply with the provisions of the City Records Management Manual published by the Records Management Division of the North Dakota Information Technology Department, a copy of which is on file with the City auditor. That publication is hereby made a part of this chapter by reference with the exception of any sections hereinafter set forth affecting local conditions in the City, which are amended, deleted, or added to, for use and application in the City, and the City hereby adopts said manual as so modified from time to time by resolution of the City Council.
21
CHAPTER TWO
ORDINANCES
ARTICLE 1 - Procedure
2.0101 Enacting Clause for Ordinances
2.0102 Procedure in Passing Ordinances
2.0103 Yea and Nay Vote on Passage - When Required
2.0104 Reconsideration or Rescinding Vote
2.0105 Publication of Ordinances
2.0106 Effective Date of Ordinances
2.0107 Effect of Repeal
2.0108 Enactment and Revision of Ordinances
2.0109 Action for Violation of Ordinance in Corporate Name - Previous Prosecution, Recovery or Acquittal No Defense
2.0110 Summons to Issue on Violation of Ordinance - When Warrant of Arrest to Issue
2.0111 Commitment of Guilty Person for Non-payment of Fines or Costs
2.0112 Costs of Prosecution
2.0113 Judgment of Conviction
2.0114 Refusal to Work
2.0115 Fines and Forfeitures for Violation of Ordinances Paid into Municipal Treasury
2.0116 Deferring or Suspending Sentence
22
CHAPTER TWO
ORDINANCES
ARTICLE 1 - Procedure
2.0101 Enacting Clause for Ordinances
The enacting clause for every ordinance adopted by the City of Center shall be “Be it ordained by the City Council of the City of Center.” Such caption, however, may be omitted where the ordinances are published in book form or are revised and digested.
2.0102 Procedure in Passing Ordinances
All ordinances shall be read twice and the second reading and final passage shall not be had less than one week after the first reading. After the first reading and before final passage, an ordinance may be amended. Except as otherwise specifically provided, a majority of all of the members of the City Council must concur in the passage of an ordinance, and in the creation of any liability against the City, and in expending and in appropriating money.
2.0103 Yea and Nay Vote on Passage - When Required
The yea and nay shall be taken and entered on the journal of the City Council’s proceedings upon the passage of all ordinances and upon all propositions creating any liability against the City, or providing for the expenditure or appropriation of money, and in all other cases at the request of any member. The member of the City Council who passes his vote or who remains silent when the roll call on the vote is taken, shall be deemed to have voted yea, and a record of yea shall be entered in the journal.
2.0104 Reconsideration or Rescinding Vote
No vote of the City Council shall be reconsidered or rescinded at a special meeting unless at such special meeting there is present as large a number of members as were present when such vote was taken.
2.0105 Publication of Ordinances
The title and penalty clause of every ordinance imposing any penalty, fine, imprisonment or forfeiture for violation of its provisions after the final adoption of such ordinance, shall be published in one issue of the official paper of the municipality.
23
2.0106 Effective Date of Ordinances
Ordinances finally approved by the City Council of a municipality and which require publication shall take effect and be in force from and after the publication thereof, unless otherwise expressly provided in the ordinance. Ordinances which do not require publication shall take effect and be in force from and after the final approval thereof unless otherwise expressly provided therein.
2.0107 Effect of Repeal
When any ordinance repealing a former ordinance, clause or provision shall itself be repealed, such repeal shall not be construed to revive such former ordinance, clause or provision, unless it shall be expressly so provided.
2.0108 Enactment and Revision of Ordinances
The provisions of NDCC Section 40-11-09 and all subsequent amendments are hereby incorporated by reference in this ordinance.
The Mayor of the City may appoint, by and with the advice and consent of the City Council of the municipality, one or more competent persons to prepare and submit to the City Council for its adoption or rejection, an ordinance for the revision or amendment of existing ordinances or for the enactment of new and additional ordinances for such municipality. The attorney for the municipality, if it has an attorney, shall be appointed as one of the persons to prepare and submit such ordinance. The compensation of the reviser or revisers, including that of the attorney, shall be determined by the City Council and shall be paid out of the municipal treasury. Such revision, including any additional ordinances and amendments to existing ordinances contained therein, may be passed as a single ordinance and may be published in pamphlet or book form, by and under the authority of the City Council, and shall be valid and effective without publication in a newspaper or posting.
2.0109 Action for Violation of Ordinance in Corporate Name - Previous Prosecution, Recovery or Acquittal No Defense
The provisions of NDCC Section 40-11-10 and all subsequent amendments are hereby incorporated by reference into this ordinance.
Any action brought to recover any fine, to enforce any penalty, or to punish any violation of an ordinance of the City shall be brought in the corporate name of the City of Center as plaintiff. A prosecution, recovery, or acquittal for the violation of any such ordinance may not constitute a defense to any other prosecution of the same person for any other violation of any such ordinance, notwithstanding that the different claims for relief existed at the time of the
24
previous prosecution and, if united, would not have exceeded the jurisdiction of the court.
2.0110 Summons to Issue on Violation of Ordinance - When Warrant of Arrest to Issue
The provisions of NDCC Section 40-11-11 and all subsequent amendments are hereby incorporated by reference in this ordinance.
In all actions for the violation of an ordinance, the first process shall be a summons, but a warrant for the arrest of the offender shall be issued upon the sworn complaint of any person that an ordinance has been violated and that the person making the complaint has reasonable grounds to believe the person charged is guilty of such violation. Any person arrested under a warrant shall be taken without unnecessary delay before the proper officer to be tried for the alleged offense.
2.0111 Commitment of Guilty Person for Non-payment of Fines or Costs
The provisions of NDCC Section 40-11-12 and all subsequent amendments are hereby incorporated by reference in this ordinance.
Any person upon whom any fine or costs, or both, has been imposed for violation of a City ordinance may, after hearing, be committed upon order of the court to jail or other place provided by the City for the incarceration of offenders until the fine or costs, or both, are fully paid or discharged by labor as provided in Section 2.0113. The court may not commit a person under this section when the sole reason for his nonpayment of fine or costs, or both, is his indigence. An order of commitment under this section shall not be for a period in excess of thirty days. As used in this section, “fine” does not include a fee established pursuant to subsection 2 of NDCC Section 40-05-06.
2.0112 Costs of Prosecution
In every case of conviction of a violation of any ordinance, or any part thereof, the cost of prosecution shall be assessed against the person convicted as part of the punishment.
2.0113 Judgment of Conviction
In all trials for offenses under the ordinances of the City, if the defendant is found guilty, the municipal judge shall render judgment accordingly. It shall be a part of the judgment that the defendant stands committed until such judgment is complied with, and, at the discretion of the municipal court, he may be required to work for the municipality at such labor as the defendant’s strength and health will permit under the provisions of NDCC Section 40-18-12.
25
2.0114 Refusal to Work
Any person refusing to perform manual labor in accordance with the sentence of the court shall be deemed in contempt of court and shall be punished accordingly. No credit shall be allowed such person on account for fines and costs for the days that such person refuses to perform manual labor, in accordance with the sentence of the court.
2.0115 Fines and Forfeitures for Violation of Ordinances Paid into Municipal Treasury
All fines, penalties and forfeitures collected for offenses against the ordinances of the City shall be paid into the City’s treasury each month.
2.0116 Deferring or Suspending Sentence
The municipal judge may, upon the conviction of any person of any offense against any of the ordinances of the City, then and there impose a sentence of imprisonment as may be regulated by such ordinances, or defer imposition of sentence or suspend the sentence imposed on such person for a period of not to exceed ninety (90) days from the date of such conviction. The municipal judge may, during such period, allow the defendant to go upon his own recognizance, or upon such bail as may be regulated by law or the ordinances of the City, or may suspend or defer such sentence upon such terms and conditions as the judge may prescribe. The municipal judge may, at or before the expiration of such period, have the defendant brought before him and commit such defendant or cause such sentence of imprisonment to be then and there imposed.
26
CHAPTER THREE
PUBLIC PLACES AND PROPERTY
ARTICLE 1 - Construction and Repair
3.0101 Supervision
3.0102 Construction and Repair - Permits
3.0103 Bond
3.0104 Specifications
3.0105 Duty of Owner to Maintain
3.0106 Application for Permit
3.0107 Standards for Issuance of Permit
3.0108 Sidewalks Built to Grade Specifications
3.0109 Materials and Manner of Construction
3.0110 City Contractor
ARTICLE 2 - Use and Care of Streets, Sidewalks and Public Places
3.0201 Obstructions - Penalty
3.0202 Encroachments
3.0203 Wires – Depths for Buried Utility Lines
3.0204 Littering - Prohibited
3.0205 Burning
3.0206 Heavy Vehicles
3.0207 Removal of Snow and Ice from Sidewalk
3.0208 Removal of Snow and Ice by City
3.0209 Assessments by Street Commissioner When Work is Done by City
3.0210 Snow and Ice Removal Assessments, Publication by Auditor, Hearing by City Council
3.0211 Street Cleaning - Snow Removal
3.0212 Notice - Snow Removal or Street Cleaning
3.0213 Impounding Vehicles and Equipment
3.0214 Blocking Streets
3.0215 Excavations - Permit
3.0216 Guarding of Excavations and Openings
3.0217 Application for Excavation Permits
3.0218 Fees for Excavation Permits
3.0219 Bond - Excavations
3.0220 Deposit - Excavations
3.0221 Making Excavations - Notice
3.0222 Restoration of Excavations
3.0223 Supervision of Excavation Work
3.0224 City Parks - Hours
3.0225 City Buildings, Equipment and Vehicles - Smoking
27
ARTICLE 3 - Unclaimed and Abandoned Property
3.0301 Unclaimed and Abandoned Property - Defined
3.0302 Seizure of Unclaimed or Abandoned Property
3.0303 Holding of Personal Property - Notice of Sale
3.0304 Report of Abandoned Property Sale
3.0305 Bill of Sale - Abandoned Property
3.0306 Proceeds of Sale - Abandoned Property
3.0307 Redemption of Personal Property
3.0308 Annual Report - Unclaimed and Abandoned Property
ARTICLE 4- House Numbering
3.0401 Definition
3.0402 System of Numbering
3.0403 Dividing Streets and Avenues
3.0404 Figures to Be Used
28
CHAPTER THREE
PUBLIC PLACES AND PROPERTY
ARTICLE 1 - Construction and Repair
3.0101 Supervision
All construction maintenance and repair of public streets, alleys, sidewalks and other public ways shall be under the supervision of the City Engineer or street commissioner (wherever “street commissioner” is referenced in these Ordinances, it shall be considered as referring to that member of the City Council assigned the street portfolio). He or she shall be charged with the enforcement of all ordinance provisions relating to such public places (except traffic ordinances) and is hereby authorized to enforce such ordinance.
3.0102 Construction and Repair - Permits
It shall be unlawful to construct, reconstruct, alter, grade or repair any public street, sidewalk, driveway, curbs or gutters without having first secured a permit therefore, unless said work is performed by a City contractor. Applications for such permits shall be made to the Auditor and shall state the location of the intended pavement or repair, the extent thereof and the person or firm who is to do the actual construction work. No such permits shall be issued except where the work will conform to the ordinances of the City.
3.0103 Bond
Each applicant shall file a bond in the amount of 100% of the project cost with surety to be approved by the City Council conditioned to indemnify the City for any loss or damage resulting from the work undertaken or the manner of doing the same.
3.0104 Specifications
All construction, maintenance and repair herein shall be made in conformity with specifications laid out or approved from time to time by the City Council.
3.0105 Duty of Owner to Maintain
It shall be the duty of the owner of any property along which a sidewalk has been constructed to maintain the same in good repair and safe condition. Should any such owner fail so to maintain such sidewalks, the city engineer or street commissioner shall direct him to make such repairs as may be necessary to restore such sidewalk to a safe condition. Should he fail, within a reasonable
29
time, to follow the directions of the city engineer or street commissioner, the city engineer or street commissioner shall report the facts to the City Council, which shall then proceed as provided in Chapter 40-29 of the NDCC.
3.0106 Application for Permit
An applicant for a permit hereunder shall file with the City Auditor an application showing:
1. The name and address of the owner, or agent in charge, of the property abutting the proposed work area.
2. The name and address of the party doing the work.
3. The location of the work area.
4. Attached plans or sufficient sketches showing details of the proposed alterations.
5. The estimated cost of the alterations.
6. Such other information as the city engineer or street commissioner shall find reasonably necessary to determine whether a permit should be issued hereunder.
3.0107 Standards for Issuance of Permit
The city engineer or street commissioner shall issue a permit hereunder when it is determined:
1. That the work will be done according to the standard specifications of the City for public work of like character.
2. That the operation will not unreasonably interfere with vehicular and pedestrian traffic, the demand and necessity for parking spaces, and the means of ingress and egress to and from the property affected and adjacent properties.
3. That the health, welfare and safety of the public will not be unreasonably impaired.
3.0108 Sidewalks Built to Grade Specifications
All sidewalks shall be constructed in accordance with the elevations and grade therefore to be furnished by the city engineer and shall be constructed
30
under his direction and supervision or under the direction and supervision of the street commissioner. All sidewalks shall meet the following requirements:
1. All sidewalks shall be of concrete and of at least four (4) inches in thickness.
2. All sidewalks in residential areas shall be constructed not less than four (4) feet in width and shall have a minimum slope one-fourth (1/4) inch per foot from the inside edge toward the street.
3. All sidewalks shall be laid out as follows:
a. In locations where the right-of-way is sixty (60) feet or less the sidewalks shall be constructed on the property line.
b. In locations where the right-of-way is greater than sixty (60) feet the sidewalk shall be constructed eighteen (18) inches out from the property line.
c. In no case in the residential district shall the sidewalk be constructed adjacent to the curb unless right-of-way and topographic features require it.
d. Notwithstanding any other provision herein all sidewalks shall be set out so that they are in conformity with existing sidewalks to which they may attach.
4. All sidewalks in commercial and/or industrial districts shall be constructed from the property line to the back of the curb and the width of sidewalk shall be governed by the width of street section; provided however, in areas where commercial development is not complete the entire sidewalk need not be constructed. In such instance, a section six (6) feet in width adjacent to the curb shall be constructed thus leaving an area for structural foundations.
3.0109 Materials and Manner of Construction
The kind and quality of material and the manner in which driveways, curb and gutter, relaying of block walks and paving repairs shall be constructed shall be determined by the city engineer.
3.0110 City Contractor
The City Auditor shall receive bids for the construction of sidewalks, driveways, curb and gutter and paving repairs as the City may find necessary to have done. Such bids shall be made upon blanks furnished by the city engineer
31
or street commissioner and shall conform to specifications filed with the City Auditor by the city engineer or street commissioner and approved by the City Council.
All sidewalks, driveways, curb and gutter and alley returns lying between the property line and the abutting street hereafter constructed within the City must conform to this chapter, and the detailed specifications must be filed with the city engineer, and approved by the City Council prior to construction. When any contract for the construction of sidewalks, driveways, curb and gutter, relaying of block walks and paving repairs is about to be entered into by the City in accordance with the provisions of the laws of this state, the contractor to whom any such contract shall be awarded shall be required, before such contract is entered into, to give in addition to the contract bond required by the laws of the state of North Dakota, an additional bond in an amount to be determined by the City Council, running to the City, conditioned that said contractor shall maintain and keep in good repair, for a period of two (2) years from date of final acceptance all sidewalks, driveways, curb and gutter and paving repairs so constructed by such contractor under the terms of such contract, and that in case of default on the part of such contractor to so maintain and keep such improvements in good repair made by him for the said period of two (2) years, or in case they shall within said time begin to crumble or disintegrate or become cracked or broken to such extent that, in the opinion of the city engineer or street commissioner, the same is not a satisfactory compliance with the specifications for the construction thereof, then the city engineer or street commissioner may direct that such sidewalks, driveways, curb and gutters or paving repairs be immediately repaired or re-laid in whole or in part as he shall deem best, and the contractor shall immediately cause the same to be repaired. Failure to so repair or to relay the same, the City at any time within said two (2) year period or thereafter, may cause the same to be repaired or re-laid, and the cost thereof, whether done by the City directly or through a contract, may be recovered against said contractor and the filed surety bond.
ARTICLE 2 - Use and Care of Streets, Sidewalks and Public Places
3.0201 Obstructions - Penalty
It shall be unlawful for any person, firm or corporation to cause, create or maintain any obstruction of any street, alley, sidewalk or other public way, except as may be specified by ordinance or by the city engineer or street commissioner.
Any person violating the provisions of this section shall be guilty of an infraction and upon conviction thereof, shall be fined not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500.00).
32
3.0202 Encroachments
It shall be unlawful to erect or maintain any building or structure that encroaches upon any public street or property without first having secured permission from the City Council.
3.0203 Wires – Depths for Buried Utility Lines
It shall be unlawful to erect any poles or wires or maintain any poles or wires over any public place, street, alley or other public way without having first secured permission from the City Council.
Any person or company which maintains poles and wires in the streets, alleys or other public places, shall keep such wires and poles free from and away from any trees and shrubs in such places as far as may be possible, and keep all such trees and shrubs near such wires and poles properly trimmed so that no injury is done to the poles or wires or to the shrubs and trees by their contact.
Any underground gas or utility transmission line of any type shall be buried to a depth of at least 18 inches.
3.0204 Littering - Prohibited
No person, firm or corporation shall throw or deposit or cause to be thrown or deposited any garbage, glass, bottles, boxes or rubbish of any kind upon any street or alley in the City. Any person violating the provisions of this section shall be guilty of an infraction.
3.0205 Burning
It shall be unlawful for any person, firm or corporation to burn any leaves, paper, rubbish or other substances upon any of the public streets, sidewalks or alleys in the City. Any person violating the provisions of this section shall be guilty of an infraction.
3.0206 Heavy Vehicles
No person, firm or corporation shall move, or cause to be moved over the paved streets, sidewalks, crosswalks, culverts, bridges and viaducts within the City any engine, tractor, wagon, truck or other vehicle, object or thing which will tend to injure the paving, sidewalks, crosswalks, culverts, bridges or viaducts over which the same are transported, or which exceeds in weight, 16,000 pounds per axle and exceeds 750 pounds per inch of tire widths, or any vehicle to the wheels of which are attached spurs, bars, angle irons or cleats which will tend to mar or deface the paving, sidewalks, crosswalks, culverts, bridges or viaducts, except under the direction and permission of the City Council and, in addition
33
thereto, shall pay or cause to be paid to said City, upon demand, any and all damages done to the paving, sidewalks, crosswalks, culverts, bridges or viaducts, provided that when the specified load limits herein contained will cause damage to the City’s paved streets, the City Council by resolution adopted, and made public, may lower said load limits for such period of time it may deem necessary. The provisions of this section shall not apply to state and federal highways through the City.
3.0207 Removal of Snow and Ice from Sidewalk
It shall be, and hereby is declared to be, the duty of the owner or occupant of each lot in the City to remove from the sidewalk in front of or along the same, any ice or snow which forms, accumulates or obstructs such sidewalk, within twenty-four (24) hours after the ice forms or the snow ceases to fall thereon. Where the ice accumulated is of such character as to make the removal thereof practically impossible, the sprinkling of ashes or sand thereon within the time specified for removal in such manner as to make such sidewalk safe for the travel of pedestrians thereon shall be deemed compliance with the provisions of this article. No owner or occupant shall blow or shovel snow into public streets except with permission of the City.
3.0208 Removal of Snow and Ice by City
In case the owner of any lot in the City refuses or neglects to remove such ice from such sidewalk in front of or along a lot therein, the ice or snow therefrom within the same time above stated or refuses to sprinkle ashes or sand on the same within the time specified for removal in such manner as to make such sidewalk safe for travel of pedestrians thereon, the same may be removed by or under the direction of the city engineer or street commissioner, or ashes or sand sprinkled thereon, and the necessary expenses shall be charged against the abutting property by special assessment in the manner prescribed by law.
3.0209 Assessments by Street Commissioner When Work is Done by City
Whenever the street commissioner shall, pursuant to Section 3.0211 of this article, remove or cause to be removed any snow or ice from any sidewalk or sidewalks along or in front of any building, grounds or premises, he shall assess the cost of the same against said property, and on or before the first day of May in each year, make and file in the office of the City Auditor a list of the property chargeable with such expense, the actual cost and expense of such removal and a description of the lot, lots or parcels of land along or in front of which is the sidewalk or sidewalks from which snow or ice has been removed. (Source: NDCC Section 40-29-18)
34
3.0210 Snow and Ice Removal Assessments, Publication by Auditor, Hearing by City Council
The City Auditor shall give notice by publication in the official newspaper of the hearing and confirmation of such report and assessment at the regular June meeting of the City Council, notifying all persons objecting thereto to appear and present their objections. The notice shall be published once each week for two (2) consecutive weeks, the last publication to be not less than eight (8) days before the time fixed for the hearing. At the June meeting of the City Council or at such later meeting as the hearing and confirmation of such assessment may be adjourned to, the City Council shall consider said assessment and shall hear any objections thereto or to any part thereof, and after revising and correcting the same, if necessary, it shall approve and confirm the list. The City Auditor shall attach to such list his or her certificate that the same is correct as confirmed by the City Council and shall file said assessment list in his office. The assessment shall be certified to the county auditor by the City Auditor in the manner provided in NDCC Section 40-24-11. (Source: NDCC Sections 40-29-19 and 20)
3.0211 Street Cleaning - Snow Removal
Whenever, in the judgment of the City Council or the city engineer or street commissioner, it shall be necessary that streets, alleys or public ways in the City shall be cleared of snow or ice or be cleaned by the use of street sweepers or other methods of cleaning such streets, or for marking for traffic purposes, the ordinances of the City regulating the parking of automobiles, trucks and other motor vehicles shall be suspended and it shall be unlawful for any automobile, truck or other motor vehicle to be parked or left standing between the hours hereinafter mentioned and during the period of time during which the said parking ordinances are suspended.
3.0212 Notice - Snow Removal or Street Cleaning
Whenever it becomes necessary to remove snow or ice or to sweep and clean streets, or to mark streets for traffic purposes there shall be designated by the city engineer or street commissioner the area and streets to be cleared of snow or ice or cleaned as aforesaid and the time during which such snow or ice removal and street cleaning and marking of streets shall be done and posting of such information in the area affected.
3.0213 Impounding Vehicles and Equipment
Whenever any parked automobile, truck, machinery, vehicle or equipment shall be found in any place prohibited by these restrictions, and during the hours as provided herein, the same shall be impounded by the City at a place to be provided and it shall be unlawful for any person, firm or corporation to remove or
35
attempt to remove any truck, automobile, machinery, vehicle or equipment from the place where impounded without first paying the cost of such impounding.
3.0214 Blocking Streets
No driver of any vehicle shall stop the same on any street or alley of the City in such a manner as to hinder or prevent other vehicles or persons from passing at all times, unless in case of emergency or absolute necessity, nor shall any driver of any vehicle stop the same at any regular crossing of said street or alley, so as to prevent the free passage of persons traveling or passing on foot.
3.0215 Excavations - Permit
It shall be unlawful for any person, firm or corporation, except public utilities which have received a franchise from the City, to tunnel under or to make any excavation in any street, alley or other public place in the City without having obtained a permit as is herein required, or without complying with the provisions of this article or in violation of or variance from the terms of any such permit.
3.0216 Guarding of Excavations and Openings
It shall be unlawful for any person within the City limits to leave or keep open, uncovered or unguarded any cellar door, pit, grating, vault or other subterranean passage opening from, into or upon any street, alley or sidewalk, or upon any private property if not suitably guarded.
3.0217 Application for Excavation Permits
Applications for excavation permits shall be made to the Auditor, and shall describe the location of the intended excavation or tunnel, the size thereof, the purpose therefore, and the person, firm or corporation doing the actual excavating work and the name of the person, firm or corporation for whom or which the work is being done, and shall contain an agreement that the applicant will comply with all ordinances and laws relating to the work to be done.
3.0218 Fees for Excavation Permits
The fee for excavation permits shall be as set by the City Council from time to time ($10.00 at the time of enactment of these Ordinances).
3.0219 Bond - Excavations
No excavation permit shall be issued unless and until the applicant therefore has filed with the Auditor a bond in the sum of ten thousand dollars ($10,000.00), conditioned to indemnify the City for any loss, liability or damage that may result or accrue from or because of the making, existence or manner of
36
guarding or constructing any such tunnel or excavations. Such bond shall have as surety a corporation licensed to do business in the state as a surety company.
3.0220 Deposit - Excavations
No such permit shall be issued unless and until the applicant therefore has deposited with the Auditor a cash deposit or bond in the sum of $500.00 to insure the proper restoration of the ground and laying of the pavement if any. From this deposit shall be deducted the expense to the City of relaying the surface of the ground or pavement and of making the refill if this is done by the City or at its expense, and the balance shall be returned to the applicant without interest after the tunnel or excavation is completely refilled and the surface or pavement is restored.
3.0221 Making Excavations - Notice
It shall be unlawful to make any such excavation or tunnel in any way contrary to or at variance with the terms of the permit therefore. Proper bracing shall be maintained to prevent the collapse of adjoining ground, and in excavations, the excavation shall not have anywhere below the surface any portion which extends beyond the opening at the surface.
No injury shall be done to any pipes, cables or conduits in the making of such excavations or tunnels, and notice shall be given to the persons or utility maintaining any such pipes, cables or conduits or to the City department or officer charged with the care thereof, which are or may be endangered or affected by the making of any such excavation or tunnel before such pipes, cables or conduits shall be disturbed. Notice shall be given as required by NDCC Chapter 49-23 (“one-call” excavation notice system).
No unnecessary damage or injury shall be done to any tree to shrub or the roots thereof.
3.0222 Restoration of Excavations
Any person, firm or corporation making any excavation or tunnel in or under any public street, alley or other public place in the City shall restore the surface to its original condition if there is no pavement there. Refills shall be properly tamped down, and any bracing in such tunnel or excavation shall be left in the ground.
Any opening in a paved or improved portion of a street shall be repaired and the surface re-laid by the applicant, in compliance with the ordinances of the City and under the supervision of the street commissioner or city engineer.
37
3.0223 Supervision of Excavation Work
The street commissioner or the city engineer shall from time to time inspect or cause to be inspected, all excavations and tunnels being made in or under any public street, alley or other public place in the City to see to the enforcement of the provisions of this article. Notice shall be given to either of them at least ten (10) hours before the work of refilling any such tunnel or excavation commences.
3.0224 City Parks - Hours
All City parks shall have established hours of public access. The hours shall be as determined from time to time by the Center Park Board. Notice of the same may be published in the official newspaper or posted at the public parks. Any variance from the above hours of use shall be under special permission granted by the Park Board.
3.0225 City Buildings, Equipment and Vehicles - Smoking
Smoking is not permitted in City buildings, equipment and vehicles, except in designated smoking areas. The public official having general supervisory authority over any City buildings, equipment or vehicles may designate a smoking area by posting a sign in the smoking area which states “Designated Smoking Area.” Any designated smoking area in a place of public assembly may not occupy more than fifty percent of the total area available to the public and must be situated to minimize smoke drift. (Source: NDCC Section 23-12-10)
ARTICLE 3 - Unclaimed and Abandoned Property
3.0301 Unclaimed and Abandoned Property - Defined
Personal property left upon the streets, alleys or other public ways in the City shall be deemed to be unclaimed or abandoned within the meaning of this article when the same is permitted to remain in any one place upon said streets, alleys or other public ways for a period of ten (10) days or more.
3.0302 Seizure of Unclaimed or Abandoned Property
Whenever any unclaimed or abandoned personal property is found upon the streets, alleys or other public ways of the City, the same shall be seized and possession thereof taken by any police officer, street commissioner or other officer of the City.
38
3.0303 Holding of Personal Property - Notice of Sale
Abandoned personal property shall be held by the City for a period of not less than sixty (60) days after its seizure as provided herein, and after the expiration of said sixty (60) days the City Auditor shall cause notice to be published in the official newspaper of said City, said notice specifying and stating the description of the property so seized and held, the location of the place where the same was seized or taken by said City, and a further notice that said property will be sold at public auction, to the highest bidder for cash, not less than ten (10) days from and after the date of the publication of such notice and the hour, date and place where said sale will be held. If prior approval is obtained from the City Council such unclaimed or abandoned property may be sold at a community auction provided that the City Auditor or member of the Council assigned the Police portfolio shall be responsible for the notice and reporting requirements of this article.
3.0304 Report of Abandoned Property Sale
At the time specified in said notice the said property shall be sold by the Auditor or Chief of Police at public auction, to the highest bidder for cash, and within three (3) days after the date of said sale, the officer making the sale shall make a report thereof to the City Council. The report shall contain the description of the property sold, the time and place of the sale, the name or names of the purchaser or purchasers and the amount received therefore. The report shall be made under oath and subscribed by the officer making such sale and shall be filed with the City Auditor within three (3) days after the date of such sale. The officer upon filing the report shall pay to the City Auditor the proceeds of said sale.
3.0305 Bill of Sale - Abandoned Property
Upon the receipt of the report as specified in Section 3.0304 hereof, the City Auditor shall prepare a bill of sale of the property sold conveying the same to such purchaser and the same shall be executed by the presiding officer of the City Council and attested to by the City Auditor and delivered to the purchaser.
3.0306 Proceeds of Sale - Abandoned Property
The City Auditor shall retain such money as is received from such sales in a separate account for a period of six (6) months from and after the time of such sale and if proceeds of such sale are not claimed as hereinafter provided by the owner of said property, the said money shall thereupon be transferred to the general fund of the City.
39
3.0307 Redemption of Personal Property
Any person owning such personal property seized as aforesaid, may at any time prior to the sale thereof, upon furnishing satisfactory proof of his ownership thereof to the City Council, reclaim such property upon paying the expenses incurred by the City for the seizure, storage or advertising the sale thereof and any person owning such property as aforesaid may at any time within six (6) months after such sale and upon making satisfactory proof to the City Council of his ownership thereof, claim the proceeds of such sale, upon payment to the City of the necessary expenses incurred by the City for the seizure, storage and sale of said property.
3.0308 Annual Report - Unclaimed and Abandoned Property
The Police Commissioner prior to June 1 of each year shall submit to the City Auditor a written list of all unclaimed and abandoned property held by the City which has not been sold pursuant to the provisions of this article. The City Auditor shall bring such list to the attention of the City Council at the next regular meeting.
ARTICLE 4 - House Numbering
3.0401 Definition
In this Article, the term “building” shall be defined as a major structure such as that used for human dwelling, commercial purposes, or public service. It shall not be construed as applying to one or two car garages, garden sheds, and the like.
3.0402 System of Numbering
The building on each lot or tract of land abutting any street or avenue in the City shall be assigned a number which shall be an official designation of such structure. The south side of an avenue or a street running east and west shall bear the odd numbers and the north side of such avenues or streets shall bear the even numbers. The east side of avenues running north and south shall bear the odd numbers and the west side of such avenues shall bear the even numbers. If two buildings shall occupy a lot or tract of land, then the extra building shall be given a number between that of the first building and the number of the building on the next lot. Entrances to separate sections of buildings (e.g. upper floors having separate street level entrances) shall be numbered as extra buildings.
40
3.0403 Dividing Streets and Avenues
The numbering on avenues running north and south for either direction shall begin at Main Street. The numbering of the streets running east and west for either direction shall begin at Center Avenue except south of Square Butte Creek the dividing line shall be Bridge Avenue. Numbering shall progress from block to block, commencing with one hundred (100) at the crossing of every street in either direction from said dividing lines. Long blocks shall be divided as thought the streets or avenues went through.
3.0404 Figures to Be Used
It shall be the duty of the owner and occupants of every house in the City to have placed thereon figures at least two and one-half (2½) inches high, showing the number of the house. The figures may be metal, wood, plastic, or other substantial material attached to the building or may be painted, stamped, or printed on glass or other substantial background and attached to the building on the side facing the street as near the front entrance as is practical. In cases where the building is not readily visible from the street the figures may be attached to other support on approval by the appropriate City authority.
41
CHAPTER FOUR
FIRE PROTECTION AND PREVENTION
ARTICLE 1 - Fire Limits
4.0101 Fire Limits
4.0102 Fire Limits - Erection of Buildings Within
4.0103 Alterations and Additions in Fire Limits
4.0104 Inspection of Premises, Materials, Discovery, Order
4.0105 Repairs to Damaged Buildings
ARTICLE 2- Fires in Public Places
4.0201 Smoking - Setting Fires
4.0202 Notice - Smoking Ordinance
4.0203 Bonfires Prohibited - Exception
4.0204 Hot Ashes and Other Dangerous Materials - Depositing of
ARTICLE 3 - Firearms, Fireworks and Explosives
4.0301 Exploding Firearms
4.0302 Blank Cartridges, Pistols, Etc. - Manufacture, Use and Sale of
4.0303 Fireworks Defined
4.0304 Fireworks - Discharging of, Sale of
4.0305 Exceptions to Fireworks Restrictions
4.0306 Penalty
ARTICLE 4 - Adoption of Electrical Code
4.0401 Electrical Code Adopted
ARTICLE 5 - Penalty for Violation of this Chapter
4.0501 Penalty - Violations of Fire Protection and Prevention Chapter
42
CHAPTER FOUR
FIRE PROTECTION AND PREVENTION
ARTICLE 1 - Fire Limits
4.0101 Fire Limits
All those parts of the City which have been zoned for commercial or industrial use or that may hereafter be so zoned.
4.0102 Fire Limits - Erection of Buildings Within
No buildings or parts of any buildings shall be erected within the fire limits unless the construction meets the provisions of the North Dakota State Building Code, which is the official building code of the City. Outbuildings may be erected of any other material, not necessarily of fireproof qualities, by obtaining a permit from the City Council upon application therefore which may be granted or refused in the City Council’s discretion.
4.0103 Alterations and Additions in Fire Limits
Within the fire limits no buildings or structure of frame construction or of unprotected metal construction shall be hereafter extended on any side unless the construction of such extension conforms to all requirements of this article for new construction. All ordinary construction buildings and all frame buildings hereafter built or altered in which the lower stories or portions thereof are used for business, and the stories above for residence purposes shall have all partitions and ceilings separating the business portions from the residence portions covered with metal lath and plaster or other equivalent fireproofing material.
4.0104 Inspection of Premises, Materials, Discovery, Order
The building official, or chief of fire department, or other designated official, shall as often as practical, inspect all buildings or structures during construction for which a permit has been issued to see that the provisions of law are complied with and that construction is prosecuted safely. All building materials shall be of good quality and shall conform to generally accepted standard specifications. Whenever in his opinion, by reason of defective or illegal work in violation of a provision of this article the continuance of a building operation is contrary to public welfare, he may order all further work to be stopped and may require suspension of work until the condition in violation has been remedied.
43
4.0105 Repairs to Damaged Buildings
It shall be unlawful to repair any existing frame building within the fire limits after the same has been damaged by any cause to fifty percent (50%) of its value. Any existing frame building damaged by fire otherwise over fifty percent (50%) of its value shall be torn down and removed.
ARTICLE 2 - Fires in Public Places
4.0201 Smoking - Setting Fires
Any person who, by smoking or attempting to light or to smoke cigarettes, cigars, pipes or tobacco in any manner, in which lighters or matches are employed who shall in any careless, negligent or reckless manner whatsoever, whether willfully or wantonly or not, set fire to any furniture, curtains, drapes, household fittings or furnishings whatsoever in any hotel, public rooming house, tenement house or any public building, so as to endanger life or property in any way or to any extent shall be guilty of violating this article.
4.0202 Notice - Smoking Ordinance
A plainly printed notice shall be posted in a conspicuous place in each sleeping room of all hotels, public rooming houses, lodging houses and other places of public assemblage within the City advising tenants of the provisions of this chapter.
4.0203 Bonfires Prohibited - Exception
No person shall kindle, maintain or assist in maintaining any bonfire or other exposed fire within the City except under the written permit of the Chief of Police under proper safeguards as he may direct. Permits may be granted only on condition that such permit carries an obligation on the part of the grantee to keep a sufficient safe control of said fire and to be responsible for all damages therefrom, and that all resultant embers shall be extinguished and the hot ashes removed or wet down at the close of said fire.
4.0204 Hot Ashes and Other Dangerous Materials - Depositing of
Ashes, smoldering coals or embers, greasy or oily substances and other matter liable to spontaneous ignition shall not be deposited or allowed to remain within ten (10) feet of any combustible materials or construction made up of combustible materials, except in metal or other non-combustible receptacles. Such receptacles shall be placed on non-combustible stands, unless resting on a non-combustible floor or on the ground outside the building, and shall be kept at least two (2) feet away from any combustible wall or partition.
44
ARTICLE 3 - Firearms, Fireworks and Explosives
4.0301 Exploding Firearms
It shall be unlawful for any person or persons to fire or discharge within the city limits of this City, any gun, pistol or other firearms of any description without the written permission of the City Council which permit shall limit the time of such firing and be subject to revocation by the City Council at any time after being granted. Provided, however, that nothing in this section shall be construed to apply to the firing of any gun or other firearms when done in cases of actual necessity or in the performance of lawful duty or by militia companies or veterans’ organizations when on parade.
4.0302 Blank Cartridges, Pistols, Etc. - Manufacture, Use and Sale of
No person except a licensed dealer shall manufacture, use, sell or keep for sale within the City any blank cartridges, pistols, blank cartridge revolver or other blank cartridge firearms, blank cartridge caps containing dynamite or firecrackers exceeding three (3) inches in length and exceeding one-half (1/2) inch in diameter.
4.0303 Fireworks Defined
As used in this article, the term “fireworks” means any substance or combination of substances or articles prepared for the purpose of producing a visible or an audible effect by explosion or detonation and includes blank cartridges, toy cannons and toy canes in which explosives are used, the type of balloons which require fire underneath to propel them, firecrackers, torpedoes, sky rockets, roman candles, daygo bombs or other fireworks of like construction, and any fireworks containing any explosive or compound, or any tablets, or other device containing any explosive substance and commonly used as fireworks. The term “fireworks” shall not include toy pistols, toy guns in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, and toy pistol caps which contain less than twenty-five hundredths of a grain of explosive composition per cap. (Source: NDCC Section 23-15-01)
4.0304 Fireworks - Discharging of, Sale of
The sale, use, firing or discharging of any rocket, firecracker, torpedoes, roman candles or of any such “Fourth of July” explosives whatsoever, or fireworks within the City limits is expressly prohibited at any time whatsoever, except for public displays specifically approved by the City.
45
4.0305 Exceptions to Fireworks Restriction
Nothing in this article shall be construed to prohibit the sale or use of fireworks to airplanes, railroads and other transportation agencies for signal purposes or illumination or the sale or use of blank cartridges for a show or theater or for signal or ceremonial purposes in athletics or sports or for use by military organizations.
4.0306 Penalty
Any person violating the provisions of this Article shall be guilty of an infraction.
ARTICLE 4 - Adoption of Electrical Code
4.0401 Electrical Code Adopted
There is hereby adopted the laws and regulations and wiring standards of North Dakota adopted by the State Electrical Board and the whole thereof of which not less than one (1) copy shall be on file in the office of the City Auditor of the City, and the same is hereby adopted as fully as if it were set out at length herein.
ARTICLE 5 - Penalty for Violation of this Chapter
4.0501 Penalty - Violations of Fire Protection and Prevention Chapter
Any person who shall violate any provisions of this chapter or fail to comply therewith or who shall violate or fail to comply with any order made thereunder or who shall build in violation of any detailed statement of specifications or plans submitted and approved thereunder or any certificate or permit issued thereunder and from which no appeal has been taken or who shall fail to comply with such an order as affirmed or modified by the City Council or by a court of competent jurisdiction, within the time fixed herein, shall severally for each and every such violation and noncompliance respectively, be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not to exceed thirty (30) days or by both such fine and imprisonment. The imposition of one penalty for any violation shall not excuse the violation or permit it to continue; and all such persons shall be required to correct or remedy such violations or defects within a reasonable time; and when not otherwise specified, each ten days that prohibited conditions are maintained shall constitute a separate offense.
The application of the above penalty shall not be held to prevent the enforced removal of prohibited conditions.
46
CHAPTER FIVE
POLICE DEPARTMENT
ARTICLE 1 - Organization and Regulations
5.0101 Establishment
5.0102 Additional Officers - Emergency
5.0103 Duties of Chief
5.0104 Rules and Regulations
5.0105 Duties of Police - General
5.0106 Duties of Police - Hot Pursuit - Defined
5.0107 Duties of Police - Service of Process, Etc.
ARTICLE 2 - Powers and Duties
5.0201 Money or Property of Arrested Persons
5.0202 Arrested Persons
5.0203 Stolen, Abandoned, Lost Property
5.0204 Traffic Administration
ARTICLE 3 - Miscellaneous
5.0301 False Alarms – Interference - Penalty
5.0302 Right of Way - Penalty
47
CHAPTER FIVE
POLICE DEPARTMENT
ARTICLE 1 - Organization and Regulations
5.0101 Establishment
The police department heretofore created for the City and by this chapter continued shall consist of the Chief of Police and as many police officers as may be authorized by the City Council.
5.0102 Additional Officers - Emergency
In case of riot or unusual or general disturbances of the peace, the Chief of Police shall have the power to appoint such other and additional police officers as deemed necessary for the preservation of the public peace.
5.0103 Duties of Chief
The Chief of Police shall keep available through contract an available jail with neighboring counties. The Chief of Police shall keep such records and make such reports concerning the activities of the department as may be required by statute or by the City Council. The chief shall be responsible for the performance by the police department of its functions and all persons who are members of the police department shall serve subject to the orders of the Chief of Police. The Chief of Police shall have the authority to administer oaths to police officers under the chief’s supervision.
5.0104 Rules and Regulations
The chief of the police department may make or prescribe rules and regulations for the department. Such rules, when approved by the City Council, shall be binding on members of the department. Such rules and regulations may cover, besides the conduct of the members, uniforms and equipment to be worn or carried, hours of service and all other similar matters necessary or desirable for the better efficiency of the department.
5.0105 Duties of Police - General
It shall be the duty of the police department, and each and every member of the police force, to notice and diligently inquire into and report to the Chief of Police all violations of the city ordinances or the criminal laws of the state, to make complaint against the person or persons guilty thereof and to attend punctually all trials of offenses in regard to those complaints.
48
Within the City limits and for a distance of one and one-half (1½) miles in all directions outside the City limits, police officers shall perform the duties and exercise the powers of peace officers as defined and prescribed by the laws of the State of North Dakota. (Source: NDCC Section 40-20-05)
5.0106 Duties of Police - Hot Pursuit - Defined
A police officer in “hot pursuit” may continue beyond the one and one-half (1½) mile limit to make an arrest, in obedience to a warrant or without a warrant under the conditions of NDCC Section 29-06-15, whenever obtaining the aid of peace officers having jurisdiction beyond that limit would cause a delay permitting escape. As used in this subjection, “hot pursuit” means the immediate pursuit of a person who is endeavoring to avoid arrest. (Source: NDCC Section 40-20-05)
5.0107 Duties of Police - Service of Process, Etc.
Police officers shall serve and execute any warrant, writ, process, order or notice issued to them by a municipal judge within the City in any civil or criminal action or proceeding in which the City is a party or is interested beneficially. The police, within the limits prescribed in this section, may serve and execute all writs and process issued by justices in civil actions. In addition to the duties set out in this section, the police shall perform such other duties as may be prescribed by the Chief of Police and City Council. (Source: NDCC Section 40-20-05)
ARTICLE 2 - Powers and Duties
5.0201 Money or Property of Arrested Persons
It shall be the duty of the police department, and of each and every member of the police force, to safely keep all moneys or property which may be found on the person, in possession of or claimed by any person arrested for crime and pay or deliver over the same by the order of the municipal judge, and forthwith after taking the same, to report in writing the kind and amount thereof to the municipal judge.
5.0202 Arrested Persons
Any police officer after making any arrest, with or without a warrant, for any violation of City ordinances shall take the person or persons so arrested, without any unreasonable delay, before the municipal judge to be dealt with according to law and the ordinances of the City.
49
5.0203 Stolen, Abandoned, Lost Property
The Chief of Police shall have the custody of all lost, stolen or abandoned property recovered in the City and shall make a report concerning such property as provided by Section 3.0308 of these ordinances.
5.0204 Traffic Administration
The police department shall have such duties concerning enforcement, investigation, record keeping and other matters concerning traffic administration as are more fully set forth in Article 2 of Chapter 9 of these ordinances.
ARTICLE 3 - Miscellaneous
5.0301 False Alarms – Interference - Penalty
No person shall give, or make, or place or cause to be given, made, or placed, any false report, call or communication of any kind to the police or any false police alarm with intent to deceive; or tamper with or set off any police alarm or signal box with like intent; or tamper, meddle or interfere with any such police alarm box or intentionally cut, break, deface or remove any such box, or any of the wires or supports thereof, connected with the police alarm system; or intentionally interfere with or injure any property of any kind belonging to or used by the police department; or hinder or delay any apparatus or equipment or vehicle belonging to the police department. Any person violating this section is guilty of an infraction.
5.0302 Right of Way - Penalty
Any motor vehicle or motorcycle of the police department shall, when going to or returning on business of the department, have the right-of-way upon giving an audible signal by bell, siren, exhaust whistle or flashing light. The driver of any other vehicle shall drive to the nearest right-hand curb or edge of the road, stop and remain until the police vehicle shall have passed. Any person violating this section is guilty of an infraction.
50
CHAPTER SIX
ZONING - LAND USE PLANNING
ARTICLE 1 - Planning and Zoning Commission
6.0101 Planning Commission Created
6.0102 Terms, Compensation, Meetings
6.0103 Ex-Officio Zoning Commission
ARTICLE 2 – Separate Ordinance Volume
6.0201 Separate Ordinances
51
CHAPTER SIX
ZONING - LAND USE PLANNING
ARTICLE 1 - Planning and Zoning Commission
6.0101 Planning Commission Created
There is hereby created a planning commission consisting of five members to be appointed by the City’s chief executive officer, with the approval of the City Council. The chief executive officer, the engineer and city attorney shall be ex-officio members thereof. (Source: NDCC Section 40-48-03)
6.0102 Terms, Compensation, Meetings
The terms of the members, their compensation, and meetings shall be as provided by NDCC Chapter 40-48.
6.0103 Ex-Officio Zoning Commission
The planning commission shall also serve as the zoning commission of the City to hold hearings, make reports and recommendations as to the boundaries of the various original districts and appropriate regulations to be enforced therein, and for changes in or supplements thereto. (Source: NDCC Section 40-47-06)
ARTICLE 2 – Separate Ordinance Volume
6.0201 Separate Ordinances
The City of Center has created a separately bound volume of Planning and Zoning Ordinances which are incorporated into and made a part hereof by reference.
52
CHAPTER SEVEN
WATER AND SEWER
ARTICLE 1 - Utility Established
7.0101 City Water and Sewer Department to be Independent Agency
7.0102 Scope of Utility
7.0103 Service Charges - Use of
7.0104 Policy on Improvements - Extensions
7.0105 Utility Fund - Separate Accounts
7.0106 Provisions for Financing Capital Improvements
7.0107 Agreements with Bond and Warrant Purchasers
ARTICLE 2 - Water Service
7.0201 Water System
7.0202 Water System Operator
7.0203 Application for Water Service and Service Connection Charge
7.0204 Water Service - To Property Not Previously Assessed
7.0205 Separate Connections for each Premise - Exception
7.0206 Service Outside City Limits - Prohibited - Exception
7.0207 Service in Unplatted Areas
7.0208 Water Service - Construction of - Maintenance of by Owner
7.0209 Water Meters - Checked - Fees
7.0210 Unlawful to Use Water Not Metered - Unlawful to Tamper with
Curb Cock
7.0211 Users Consent to Regulations
7.0212 Regulations Governing Service
7.0213 Connection to be Supervised by City Employees
7.0214 Service Pipes Specifications
7.0215 Curb Cock Specifications
7.0216 Check Valves Required When Necessary
7.0217 Rates and Charges
7.0218 Rates and Charges - Liability for
7.0219 Duty to Report to Auditor
7.0220 Excavators
7.0221 Restriction of Use of Water
ARTICLE 3 - Regulation of Sewer Use
7.0301 Purpose
7.0302 Definitions
7.0303 Use of Public Sewers Required
7.0304 When Private Sewage Disposal Permitted
7.0305 Building Sewers and Connections
53
7.0306 Use of Public Sewers
7.0307 Powers and Authority of Inspectors
7.0308 Penalties
ARTICLE 4 - Sewer Surcharge
7.0401 Purpose
7.0402 Determining the Total Annual Cost of Operation and Maintenance
7.0403 Determining Each User’s Wastewater Contribution Percentage
7.0404 Determining a Surcharge System for Users with Above Normal Volume, BOD and TSS
7.0405 Surcharge Rate Schedule for Above Normal Volume of Wastes
7.0406 Surcharge Rate Schedule for Above Normal Strength Wastes
7.0407 Determining Each User’s Wastewater Service Charge
7.0408 Payment of the User’s Wastewater Service Charge and Penalties
7.0409 Review of Each User’s Wastewater Service Charge
ARTICLE 5 - Adoption of State Plumbing Code
7.0501 Adoption
7.0502 Plumbing Code - Enforcement of Provisions
7.0503 Plumbing Code - Changes in Existing Installations
7.0504 Plumbing Code - New Installations
ARTICLE 6 - General Penalty Provision
7.0601 Penalty for Violation of Chapter
54
CHAPTER SEVEN
WATER AND SEWER
ARTICLE 1 - Utility Established
7.0101 City Water and Sewer Department to be Independent Agency
All of the business affairs of the Center City Water and Sewer Department shall be conducted, insofar as is possible, as a completely separate and distinct division of the City. Transfers from the Water and Sewer Department to the General Fund or any other fund of the City shall not be made except upon order of the City Council (Source: NDCC Section 40-33-12) nor shall transfer be made from City funds to the Water and Sewer Department without like order. Where bonds have now been, or may hereafter be issued against any water works improvement or sewage improvement, which constitute a general obligation of the City, the taxes levied for the payment of such bonds and interest shall be levied and expended for such purpose in the manner provided by law, until such time as it may be possible out of the proceeds of the Water and Sewer Department, after setting up a reasonable reserve for depreciation and new construction, to make payment of the bond requirements from the profits of the Water and Sewer Department. It is expressly declared to be the purpose of this ordinance that as soon as the same can be accomplished without undue burden to the water users of this City, the Water and Sewer Department shall be placed upon an entirely independent basis as a separate business enterprise.
7.0102 Scope of Utility
The properties of the City Water and Sewer Department and all future improvements, extensions and enlargements thereof, together with all cash and other assets held in the City’s Water and Sewer Utility Fund and all moneys to be derived thereafter from the services, facilities, products and by-products of said utility, shall be and are hereby appropriated and dedicated to the purpose of insuring the public health, safety and welfare by furnishing and making available water and sewerage service to the City and its inhabitants and industries. Said utility shall at all times be under the management and control of the City Council of the City and shall by it be operated and maintained in such manner as to provide its service with maximum efficiency and at the minimum cost which is compatible with the plan of operation herein described.
7.0103 Service Charges - Use of
The City Water and Sewer Department shall at all times be so operated and maintained, and rates and charges for its services, facilities, products and by-products shall be such, as to make the utility self-supporting and self-perpetuating. Such charges from time to time imposed and collected shall be
55
made and kept adequate to pay as incurred all costs of operation and maintenance of said utility and to establish and maintain reasonable operating reserves; to produce net revenues which shall be sufficient at all times to pay promptly the principal and interest due on all obligations of the City incurred for the improvement, extension and enlargement of said utility, to the extent that such obligations are according to their terms payable from said net revenues, and to establish and maintain adequate reserves for the security of said obligations. Charges may be set to produce surplus net revenues, over and above current principal, interest and reserve requirements, in amounts sufficient to provide reasonable allowances for depreciation and replacement of the utility plus a reasonable return on the City’s capital investment therein which surplus net revenues, when actually on hand, and to the extent that they are not required as a reserve for depreciation and replacement, may from time to time be appropriated by the City Council to pay or contribute to the cost of any other City functions, subject to the limitations now or hereafter prescribed by law.
The foregoing appropriations shall not, however, be deemed or construed to preclude the City from defraying any part or all of the expense of any improvement, enlargement or extension of the water and sewer utility by the levy of special assessments or taxes or the issuance of general obligation bonds, whenever and to the extent that such action is authorized in the manner provided by law and is deemed fair and equitable by the City Council.
7.0104 Policy on Improvements - Extensions
It is hereby declared to be the policy of the City, subject to such modifications as shall be deemed by the City Council to be required by special circumstances in individual cases, and subject to such modifications as may hereafter be made by ordinance amendatory hereof or supplemental hereto, that the cost of capital improvements, enlargements and extensions of said utility shall be paid in the following manner:
1. Where water mains not exceeding six inches or sanitary sewer mains not exceeding eight inches in diameter are installed adjacent to residential properties, and where water mains not exceeding eight inches or sewer mains not exceeding ten inches in diameter are installed adjacent to commercial properties, the total cost thereof shall be assessed against the properties abutting on such improvements, in sums proportionate to and not exceeding the total benefits determined to be derived therefrom by the respective properties. Water and sewer mains of the dimensions above described are referred to herein as “lateral” mains and other mains are referred to as “trunk” mains.
2. Where a trunk main is installed, the City Council upon advice of the city engineer shall estimate the probable cost of construction of a
56
lateral main at the same time and place and such estimated cost shall be assessed against the properties abutting on such main and in the manner above provided.
3. Twenty percent (20%) of the cost of any sanitary sewer in excess of the estimated cost of a lateral sewer at the same time and place shall be assessed against all properties determined by the City Council to require the immediate construction of such main as a trunk sewer, including properties abutting thereon and properties served or capable of being served by lateral sewers connected thereto, in amounts proportionate to and not exceeding the benefits determined to be derived by said respective properties from such trunk sewer.
4. The total cost of storm sewers shall be assessed against properties within the area determined to be benefited thereby, in amounts proportionate to and not exceeding the benefits determined to be derived therefrom by the respective properties.
5. Where a portion of the benefits of any of the foregoing improvements is deemed to accrue primarily to the City at large, a portion not exceeding twenty percent (20%) of the cost thereof, as determined by the City Council, may be paid by the levy of ad valorem taxes upon all property within the City over the same period as the levies of assessments for such improvements, or any portion or all of such cost may be paid out of current funds duly provided in the budget, or from the proceeds of general obligation bonds duly authorized by the electors.
6. Such portion of the cost of any improvement, extension or addition to the utility as is not paid by special assessments and taxes levied and actually collected in respect thereof shall be paid from the net revenues of the utility.
7. Where due to any error or omissions or to any special circumstances a special assessment is not levied against any property benefited by an improvement at the time of the construction thereof in accordance with the program described in this section, the City reserves the right to levy a supplemental special assessment upon such property or to impose and collect a special charge for the connection of such property with the utility system in such amount as shall be required to pay its just share of the assessable cost of such improvement.
7.0105 Utility Fund - Separate Accounts
57
All moneys received by the City in respect of the services, facilities, products and by-products furnished and made available by the City Water and Sewer Department, except collections of special assessments and taxes appropriated to improvement district funds and moneys borrowed for capital improvements, and all money, receipt and returns received from any investments of such earnings, shall be paid into the treasury of the City and kept in a special fund which shall be permanently maintained on the books of the City, separate and distinct from other funds, and designated as the Water and Sewer Utility Fund. In the records of this fund, all receipts and disbursements of money on account of or in connection with the utility shall be entered and reflected; but the moneys from time to time on hand therein shall always constitute public municipal funds and shall be deposited and their safekeeping secured like other City funds. Separate accounts within the Water and Sewer Utility Fund shall be permanently maintained for the purpose of segregating the revenues required to meet the several expenses and obligations of the utility, as provided below, and such revenues shall be administered and accounted for as follows:
1. Operation and Maintenance Account. There shall be credited at least once in each calendar month to the Operation and Maintenance Account of said fund, as a first lien and charge on the gross revenues of the utility such sum as shall be needed, over and above any credit balance then held therein, to pay all claims due which by accepted accounting practices constitute normal, reasonable and current expenses of operation and maintenance of the utility, and to pay such expenses estimated to accrue for a period of approximately one month, and to maintain a reasonable reserve for contingencies. Moneys in said account shall be used only to pay expenses of the foregoing type, and not for repairs or replacements or for capital improvements properly chargeable to replacement and depreciation reserves or surplus funds.
2. Principal and Interest Account. The Principal and Interest Account of the Fund, created by resolution adopted heretofore shall continue to be maintained as provided in that resolution until the payment in full of the improvement warrants issued against said fund.
3. Revenue Bond Account. The net revenues of the utility are herein defined as the aggregate of all sums on hand in the Water and Sewer Utility Fund from time to time in excess of the current requirements defined in (1) and (2) above. The entirety of the said net revenues shall be credited each month to the Revenue Bond Account of the Water and Sewer Fund until there shall have been credited within said account, and thereafter so much of the net revenues as shall be necessary to maintain at all times, a reserve in an amount at least equal to the sum of the principal and interest payments due within
58
each next succeeding twelve-month period upon all revenue bonds of the City heretofore or hereafter issued and made payable from said account. After this reserve has been created, there shall continue to be credited out of the net revenues to the Revenue Bond Account each month, over and above sums required to maintain such reserve, an amount not less than one-twelfth (1/12) of the sum of the principal and interest to become due on all such revenue bonds within the then next succeeding twelve months. Moneys in said account shall be used only for the payment of principal and interest as it becomes due on said revenue bonds, and the reserve shall be used for such purpose only when other moneys in the account are insufficient. All revenue bonds heretofore and hereafter issued and made payable from said account, subject to the limitations upon such issuance contained in Section (6) hereof, shall constitute a first lien and charge on the net revenues of said utility without preference or priority of one bond over any other. However, if at any time the moneys in the Revenue Bond Account should be insufficient to make all payments of principal and interest due on such revenue bonds, and cannot be made sufficient by transfer of moneys from the other accounts described below, the moneys available shall be first used to pay interest then accrued on all bonds payable from said account, and any excess moneys available shall be used to pay matured principal of such bonds in order of their maturity dates, provided that moneys available for payment of bonds maturing on the same date shall be prorated equally among such bonds.
4. Improvement Warrant Account. There shall also be maintained in said fund an Improvement Warrant Account, for the purpose of segregating net revenues required for the payment of any portion of the cost of improvements hereafter instituted, for which such revenues have been pledged in accordance with the provisions of NDCC Chapter 40-22. There shall be transferred from said account as required, to the fund of each improvement district for which such pledge has been made, sums sufficient, together with tax and assessment collections held in such funds, to pay when due the principal and interest on all improvement warrants drawn upon such funds for the financing of such improvements. Moneys sufficient for the requirements of said improvement district funds shall be credited and paid into the Improvement Warrant Account out of the net revenues remaining from time to time after provision for the current requirements of the Revenue Bond Account, and the lien and charge on said net revenues in favor of improvement warrants for the payment of which such pledges have been made shall be subordinate only to the lien and charge on said net revenues in favor of revenue bonds payable from the Revenue Bond Account. In the event that moneys in the Improvement Warrant Account shall be
59
insufficient for the making of all transfers required to be made to the several improvement district funds to which such pledges have been made, and cannot be made sufficient by the transfer of funds from the remaining accounts described below, the available moneys shall be apportioned first to the several improvement district funds in sums sufficient to pay interest then accrued on all warrants drawn on such district funds, and any remainder shall be applied in payment of matured principal of such warrants in order of the maturity dates thereof. As among warrants maturing on the same date, such available moneys shall be applied to the warrants of the several issues in proportion to the matured principal amount thereof for the payment of which taxes and assessments in the respective improvement funds are insufficient.
5. Replacement and Depreciation Account. There shall be maintained a Replacement and Depreciation Account, into which there shall be credited and paid as received, except as otherwise stated below, all net revenues in excess of the current requirements of the other accounts above described. In said account there shall be maintained such balances as the City Council shall from time to time determine to constitute an adequate reserve for depreciation and replacement of the utility, which reserve may be used to redeem prior to maturity obligations payable from the net revenues as and when the same become pre-payable according to their terms, or to replace worn out or obsolete properties of the utility, or to make extensions, enlargements or improvements thereto. Any moneys in said account determined to be surplus to the immediate requirements therefore may be invested or may be transferred to other City funds in the discretion of the Board, in the manner and subject to the limitations set forth in NDCC Section 40-33-12; and any acts amendatory thereof or supplemental thereto.
6. Moneys on Hand. The moneys on hand in any of the accounts of the Water and Sewer Utility Fund shall at all times be available and shall be used to the extent necessary to restore any deficiency in the funds on hand in any of the preceding accounts, in the order listed above, for the fulfillment of the requirements of such preceding accounts as herein defined.
7. Additional Accounts. The City also reserves the right to create additional accounts within the Water and Sewer Utility Fund for the purpose of segregating any surplus net revenues which may be pledged and appropriated to the payment of obligations hereafter issued to finance improvements, enlargements or extensions of said utility, other than the obligations made payable from the Revenue Bond Account and the Improvement Warrant Account, pursuant to
60
the authority for such issuance reserved in Section 7.0107 hereof. Moneys on hand in any such account shall at all times be available for and used to the extent necessary to meet the current requirements of all of the foregoing accounts except the Replacement and Depreciation Account.
7.0106 Provisions for Financing Capital Improvements
In borrowing money for capital improvements, extensions or additions to said utility the following provisions shall at all times be observed:
1. For the purpose of this section, whenever the net revenues of the utility hereinabove appropriated to the Improvement Warrant Account are pledged to pay a portion of the cost of any improvement to be financed by improvement warrants, such warrants and the interest accruing thereon shall be deemed to be payable from said net revenues in the same proportion as that part of the cost payable from said net revenues bears to the principal amount of such warrants. The portion of such costs payable from net revenues shall be deemed equal to the principal amount of the warrants less the principal amount of the taxes and assessments agreed to be levied for the payment thereof.
2. Except as provided in parts (3) and (4) below, no obligations shall be issued and made payable from the Revenue Bond Account or the Improvement Warrant Account at any time unless the net revenues of the utility, as defined in Section 7.0106 (3) hereof, received during the then next preceding fiscal year, shall have been in an aggregate amount at least equal to 125% of the average annual principal and interest payments due on all bonds payable from the Revenue Bond Account which are then outstanding or then to be issued, plus such percentage of the average of the annual principal and interest payments due on each issue of improvement warrants then outstanding or then to be issued as shall be payable from said net revenues, which averages shall be computed on the basis of the principal and interest payments due in the fiscal years of the then remaining term of all such revenue bonds and improvement warrants then outstanding. For the purpose of such computation, whenever rates for water and sewerage service have been changed in the course of any fiscal year, the net revenues for such year shall be deemed to be those which would have been received if such amended rates had been in effect during the entirety of such year, based upon the actual quantities of service furnished to each class of customers and the actual expenses of the utility during such year; provided that in no case shall the net revenues so computed be
61
deemed to exceed 125% of the net revenues actually received during such year.
3. Refunding revenue bonds may be issued for the purpose of prepaying and refunding bonds payable from the Revenue Bond Account when and as they become pre-payable according to their terms, in the manner and to the extent permitted by law, provided that such refunding revenue bonds shall be subject to the requirements set forth in part (2) hereof, as applied to the past net revenues and future principal and interest requirements as of the date of the issuance of such refunding revenue bonds. However, the City shall and does hereby also reserve the right and privilege of issuing refunding revenue bonds, when permitted by law, for the maturities of any bonds payable from the Revenue Bond Account which have matured and for the payment of which the moneys in the Revenue Bond Account are insufficient, and cannot be made sufficient by transfer of moneys from other accounts, and such refunding revenue bonds shall be payable from the Revenue Bond Account on a parity as to interest with all then outstanding bonds payable therefrom, but the maturities of such refunding revenue bonds shall be subsequent to the maturities of all such outstanding bonds. Nothing herein shall be deemed to require the holder of any revenue bond to accept a refunding revenue bond in exchange therefore.
4. The City also reserves the right and privilege of issuing refunding improvement warrants in the manner and to the extent provided in NDCC Chapter 40-27 and acts amendatory thereof and supplemental thereto. The lien and charge of such refunding warrants on the net revenues appropriated to the Improvement Warrant Account shall be the same as that in favor of the improvement warrants refunded thereby; provided that for the purpose of the computations directed to be made in this section, the maturities and the rate or rates of interest payable on such refunding warrants shall be substituted for the maturities and interest rates of the improvement warrants refunded thereby.
5. Nothing herein shall be deemed to affect the obligation of the City, under the laws of the State of North Dakota, to levy ad valorem taxes upon all taxable property within its corporate limits for the purpose of paying a deficiency, if any, in the fund of any improvement district, at the time of the maturity of the last warrant drawn thereon, or at such earlier time as may be hereafter directed by such laws; provided that it shall be the policy of the City that the amounts of any deficiency tax levies so made shall be restored to the general funds of the City out of any surplus net revenues thereafter received, over and above the
62
requirements of the several accounts of the Water and Sewer Utility Fund as stated in Section 7.0105 hereof.
6. Except as hereinbefore authorized, no obligation of any kind shall be issued and made payable from said net revenues unless the lien thereof is expressly made subordinate and junior to the lien and charge on said net revenues in favor of all revenue bonds and improvement warrants payable from the Revenue Bond Account and the Improvement Warrant Account.
7.0107 Agreements with Bond and Warrant Purchasers
The City shall and does hereby covenant and agree with the original purchaser and each holder from time to time of each bond or warrant issued and made payable from the Revenue Bond Account or the Improvement Warrant Account, as follows:
1. It will complete all improvements financed by the issuance of such obligations with due diligence and with the greatest economy consistent with good workmanship and efficient results, and will do so without creating or permitting the creation of any liens or encumbrances on said utility or on the revenues thereof other than the liens and charges of said revenues expressly authorized in this article.
2. As long as any obligations payable from said accounts are outstanding, it will continue to own and operate said utility as a municipal utility, free from all competition as to the services thereby provided and in good and efficient operating condition.
3. It will at all times maintain a schedule of rates, charges and rentals for all services, facilities, commodities and benefits furnished by said utility and will impose and collect the same in amounts at least sufficient to make the minimum payments into the respective accounts of the Water and Sewer Utility Fund as specified in Section 7.0105 hereof, and will revise such schedules in such manner and as often as needed to perform this covenant.
4. Under each such schedule, the City shall be obligated to pay and will pay from its other funds to the Water and Sewer Utility Fund a fair and equitable amount for any and all services, facilities, commodities and benefits furnished to the City or any of its departments by the utility.
5. It will at all times maintain books of account adequate to show all receipts and disbursements of the City respecting the utility, and
63
application of such receipts to the purposes of the several accounts described in Section 7.0105 hereof, which books of account shall be open to inspection by the holder of any obligation payable from the Revenue Bond Account or the Improvement Warrant Account at any reasonable time. The City will furnish a certified transcript therefrom of any information which any such bond or warrant holder may request, upon payment of a reasonable fee therefore.
6. It will cause the annual financial statement of the City required by the provisions of NDCC Section 40-16-05 to include a statement as to the financial condition and the receipts and disbursements of the Water and Sewer Utility Fund and of its several accounts during each fiscal year, and will furnish a copy of such statement to the original purchaser of each issue of bonds or warrants upon request.
7. Upon written demand of the holder of twenty percent (20%) or more of the bonds or warrants of any issue payable from the Revenue Bond Account or Improvement Warrant Account and then outstanding, it will cause an audit of the books of account of the utility to be made by a certified public accountant satisfactory to the holders of such obligations, the cost thereof to be paid as an operating expense of the utility and will furnish a copy of the report of any such audit to such party as shall be designated in such demand.
8. It will at all times keep the properties of said utility insured in reasonable amounts against loss or damage by fire, tornado and other risks for which similar properties are customarily insured by prudent owners, and will carry adequate public liability insurance, insuring against any claim of personal injury of property damage which is or may become a charge against the revenues of the utility. The City will also cause all persons handling funds of the utility to be bonded in suitable amounts for the protection of the City and the holders of obligations of the utility, and the expense of all such insurance and bonds shall be accounted for as an operating cost of the utility. The City will use the proceeds of any such insurance and bonds to restore the loss or damage compensated thereby.
9. The City and its City Council and each and all of its officers will punctually perform all duties with reference to said utility and the revenues thereof and the obligations issued hereunder which are imposed by the ordinances and resolutions of the City in force on the date upon which any such obligations are issued. All provisions of the Constitution and laws and of such ordinances and resolutions which provide security for the holders of bonds issued hereunder are acknowledged to be a part of the City’s contract with the holders of such obligations; provided that nothing herein shall be deemed to
64
preclude the City from modifying the policies set forth in Section 7.0104 hereof with reference to any improvements constructed and financed after the effective date of such modification.
10. The holders of twenty percent (20%) or more in principal amount of each issue of bonds or warrants payable from the Revenue Bond Account or the Improvement Warrant Account and at the time outstanding shall be privileged, and are hereby empowered, to institute and maintain, on behalf of the holders of all outstanding obligations of the same issue, any suit or proceeding at law or in equity for the protection and enforcement of any covenant, agreement or stipulation herein provided to be performed or observed by the City or its City Council or any of its officers, whether or not any such obligations are then in default as to principal and interest. Each and all of the rights and remedies provided by NDCC Sections 40-35-15 and 40-35-19 are hereby acknowledged to be available to the holders of such obligations.
ARTICLE 2 - Water Service
7.0201 Water System
All land, buildings, machinery, equipment, tools and apparatus, water mains, hydrants, service connections and all other property used for the purpose of furnishing a water supply to this City, and the inhabitants thereof, now owned or to be owned by this City, whether acquired by the issue of general obligation bonds, special assessment warrants or other obligations of this City, shall constitute and be known as the waterworks system.
7.0202 Water System Operator
A water system operator shall be appointed by the City Council. If the superintendent is a part-time employee and is also a City employee in some other capacity, only those services respecting the water system shall be an operating charge of the system. It shall be the duty of the water superintendent to exercise control and management of the operation of the waterworks system. He shall have power and authority to employ, subject to the approval of the City Council, all such engineers, filter plant operators, meter readers, laborers and other employees, as may be necessary to the operation of the waterworks system. All such employees shall be subject to his orders and directions, and he shall be responsible for their acts. He shall have power and authority to purchase such materials, supplies and repairs for the waterworks system, with the approval of the City Council, as shall be reasonably necessary for the operation of such system. He shall keep such books and records of matters pertaining to the operation of the system, as are necessary to show the operation and condition thereof. He shall at all times be subject to the supervision and
65
direction of the City Council. He shall perform such other duties and have such other powers and authority as are hereinafter provided for.
7.0203 Application for Water Service and Service Connection Charge
Any party desiring water and sewer service from said utility for premises not heretofore connected with the system, and not subject to the provisions of Section 7.0205 set forth below, shall apply for a connection on a form provided by the City. Such application shall state an exact description of the premises to be served, and the uses, both general and special, to which the water is to be put, the nature of sewage to be discharged, and the estimated amount of water to be used for a quarter-annual period. Such application shall be filed with the City Auditor, and the applicant shall thereupon pay to the City Auditor, as a connection charge, in an amount determined from time to time by the City Council.
7.0204 Water Service - To Property Not Previously Assessed
No permit shall be issued for the making of any connection between any water or sewer line on any property which has not previously been benefited by existing water and/or sewer lines or whenever the owners of such property have not been assessed for such water and sewer lines, unless and until such person shall have paid or made a written agreement with the City to pay in monthly installments an amount of money as may be therefore determined by the City Council. The amount of the payment shall be based on the area served and benefit resulting to the property involved. Within 30 days of the receipt of such application, the City Council shall determine the amount of money required to be paid before such connection shall be made and shall advise the applicant property owner of such determination. All such money paid and received pursuant to the provisions of this section shall be placed in the water and sewer utility fund and shall be expended in accordance with the purposes of such fund.
7.0205 Separate Connections for each Premise - Exception
Unless special permission is granted by the water superintendent, each premise shall have a separate and distinct water service connection and sewer service connection, and where permission is granted for branch service systems, each unit on the branch shall pay the fees as set from time to time by the City Council.
7.0206 Service Outside City Limits - Prohibited - Exception
No application for water and/or sewer service outside the city limits of the City shall be approved and no person outside the corporate limits of the City shall hook up to or make connection with the city water and/or sewer system whether the same now is outside or inside the incorporated limits of the City. Water
66
service outside the corporate limits of the City may be permitted pursuant to contractual agreement of the City Council arising in limited and extraordinary circumstances but shall be permitted only upon a resolution unanimously adopted by the City Council. (Source: NDCC Section 40-33-13, 14)
7.0207 Service in Unplatted Areas
No application for water and/or sewer service shall be approved and no person shall hook up to or make connection with the City water and sewer system unless the area to be served by said water and/or sewer connection has been duly platted and the plat approved by the City Council and recorded in the County Register of Deeds Office.
7.0208 Water Service - Construction of - Maintenance of by Owner
The cost of original installation of all plumbing between the property line and any service devices maintained by the consumer and all extensions made to such plumbing, as well as all repairs, shall be borne entirely by the consumer, although such plumbing and services as well as the meters shall at all reasonable times be subject to inspection by duly authorized representatives of the City. Any repairs found to be necessary by such representatives shall be made promptly, or the City will discontinue service.
All services shall be constructed by licensed plumbers at the owner’s expense, and each service shall be maintained by the owner. Services heretofore acquired by the issuance of special assessment warrants and assessed against the property, or which may be acquired in the future in like manner, shall likewise be maintained by the owner. Services means the service line running from the point of connection with the City property to owner’s premises.
7.0209 Water Meters - Checked - Fees
Every consumer of water shall provide a suitable place where a water meter can be installed and the municipality shall install and maintain the same, and if at any time the consumer desires to have the meter tested for accuracy, the same shall be done by the City and a fee of $10.00 charged therefore to the consumer if the meter registers 98% or more accurate. If the meter registers less than 98% accurate, it shall be replaced and the fee refunded.
7.0210 Unlawful to Use Water Not Metered - Unlawful to Tamper with Curb Cock
67
It shall be unlawful for any person to use water from any premises without the consent of the owner or to use water from the City water system except when drawn through a meter maintained by the City. No person except an authorized representative of the City shall turn on or off or tamper with any curb cock.
7.0211 Users Consent to Regulations
Every person applying for water and sewer service from the municipal system, and every owner of property for which such application is made, shall be deemed by such application to consent to all the rules, regulations and rates contained in the resolution or ordinances of the City and to any modification thereof and to all new rules, regulations or rates duly adopted.
7.0212 Regulations Governing Service
The following rules and regulations shall be considered a part of the contract with every person who takes water and/or sewer service supplied by the City through the city waterworks system and every such person who takes such service shall be considered as having expressed agreement to be bound thereby.
1. Shutting Off Water - Who Authorized. No person except an authorized employee of the water department shall shut off or turn on the water at the curb cock to any premises without first obtaining permission from the water department.
2. City Reserves Right to Shut Off Water - Notice. In the case of making repairs or constructing new work, the City reserves the right to shut off the water at once and keep the same shut off as long as may be necessary to accomplish such purposes. Service may also be discontinued for nonpayment of bills or for disregard of rules and regulations affecting the service.
3. Non-liability of City for Deficient Supply or Quality of Water. It is expressly provided that the City shall in no event be or become liable to any consumer of water for a deficiency in the supply of water or the quality thereof, whether by shutting off the same to make repairs or to construct new work or for any other cause whatsoever.
4. Shutting Off Water - Charge for. The water department shall make a charge of $1.00 each for shutting off or turning on services performed at the request of the consumer.
5. Entrance and Access to Premises by Waterworks Employees. Authorized employees of the water and sewer department shall have free access to any premises supplied with water, at proper times, to
68
inspect and ascertain the condition of the meters and fixtures, or for reading meters, and no owner or occupant shall refuse such employees such access. The water department shall have the right to enter any premises and remove the meter for the purpose of examination and test after first notifying the owner or occupant, and to shut off the water to premises where free access is prevented.
6. Fire Hydrants - Who May Open. No person except City employees authorized in the performance of their official duties shall open or cause to be opened any fire hydrant without the written permission of the water superintendent.
7.0213 Connection to be Supervised by City Employees
In installing water and sewer service, all taps shall be driven, street excavations made, corporation cocks inserted, pipes installed from the main and the curb cock installed in an iron box to which the service is to be connected by the individual, his agent or employee under the supervision, direction and control of the water and sewer department. Ten feet spacing shall be allowed between all water and sewer lines in new connections to service. Failure to comply with this section shall be considered a disregard of the rules of the department and service to the affected property can be withheld or discontinued as the case may be.
7.0214 Service Pipes Specifications
All service pipes connected with the water and sewer utility shall be laid a minimum of seven feet below the established grades or as low as the street mains. All water and sewer service pipes shall be of a material approved by the water superintendent.
7.0215 Curb Cock Specifications
There shall be a curb cock in every service line attached to the water mains, the same to be placed as near as possible to the property line if on a street, or within one foot of the alley line if the main is located in the alley. Curb cocks shall be supplied with strong and suitable “T” handles and shall be enclosed in a substantial iron case covered with a tight fitting iron lid with the letter “W” cast upon it. There shall be one or more stops and waste cocks attached to every supply pipe at some point between the curb cock and the meter so that the water can be shut off and the house plumbing entirely drained. There shall be another such stop and waste cock in the pipe on the house side of the meter.
7.0216 Check Valves Required When Necessary
69
Check valves are hereby required on all water connections to steam boilers or any other connection deemed by the water superintendent to require one. Safety and release valves shall be placed on all boilers or other steam apparatus connected with the water system where the steam pressure may be raised in excess of fifty pounds per square inch.
7.0217 Rates and Charges
Water and sewer rates shall be fixed from time to time by resolution of the City Council and the City reserves the right to change the rates from time to time as it deems best. The resolution fixing water and sewer rates and charges shall be kept on file in the office of the City Auditor and shall be open for public inspection.
7.0218 Rates and Charges - Liability for
The owner or owners of all real property in the City furnished water or sewer service or service line repairs shall be responsible for the payment of any and all such charges regardless of who the occupant or tenant may be. Owners of premises where water or sewer service is supplied shall notify the water or sewer department or the City Auditor in case any tenant moves from said premises, prior to such moving. On request of the owner or owners, the City Auditor will bill or cause to be billed the occupant or tenant for such charges, but if such charges are not paid when due by the occupant or tenant, the owner or owners shall be responsible for such charges and they shall be assessed to the property served. It shall be the duty of the City Auditor to certify to the County Auditor such unpaid water or service charges that are unpaid in the same manner and at the same time as other assessments are certified, and they shall be assessed and collected in the same manner.
7.0219 Duty to Report to Auditor
Every owner or operator of a multiple dwelling unit shall file with the City Auditor a report indicating the total number of units under his control. Every owner or operator of a mobile home park shall file with the City Auditor a report indicating the total number of units in the park and shall further notify the City Auditor of any changes in the number of units in the park if the number increases or decreases.
7.0220 Excavators
No person, firm or corporation shall excavate in or on any street, alley or other public place for the purpose of installing any water and/or sewer connection until they have complied with the provisions of the North Dakota “one call” statutes.
70
7.0221 Restriction of Use of Water
The City Council may from time to time declare that water may not be used for specific purposes or may only be used in certain parts of the City on certain days for certain purposes. The City shall have the right to prohibit the watering of lawns and gardens, the washing of cars or such other uses of the water as may be necessary to preserve for the general public an adequate supply of water for consumption and use by the general public.
ARTICLE 3 - Regulation of Sewer Use
7.0301 Purpose
It is the purpose of this article to provide ordinances regulating the use of public and private sewers and drains, private sewage disposal, the installation and connection of building sewers and the discharge of waters and wastes into the public sewer system and to provide penalties for violations thereof.
7.0302 Definitions
Unless the context specifically indicates otherwise, the meaning of the terms used in the article shall be as follows:
1. “BOD” (denoting Biochemical Oxygen Demand) shall mean the quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure in five (5) days at 20 degrees Centigrade, expressed in milligrams per liter.
2. “Building Drain” shall mean that part of the lowest horizontal piping of a drainage system which receives the discharge from soil, waste and other drainage pipes inside the walls of the building and conveys it to the building sewer, beginning five (5) feet (1.5 meters) outside the inner face of the building wall.
3. “Building Sewer” shall mean the extension from the building drain to the public sewer or other place of disposal, also called house connection.
4. “Combined Sewer” shall mean a sewer intended to receive both wastewater and storm or surface water.
5. “Easement” shall mean an acquired legal right for the specific use of land owned by others.
6. “Floatable Oil” is oil, fat or grease in a physical state such that it will separate by gravity from wastewater by treatment in an approved pretreatment facility. A wastewater shall be considered free of
71
floatable fat if it is properly pretreated and the wastewater does not interfere with the collection system.
7. “Garbage” shall mean the animal and vegetable waste resulting from the handling, preparation, cooking and serving of foods.
8. “Industrial Wastes” shall mean the wastewater from industrial processes, trade or business as distinct from domestic or sanitary wastes.
9. “Natural Outlet” shall mean any outlet, including storm sewers and combined sewer overflows, into a watercourse pond, ditch, lake or other body of surface or groundwater.
10. “Person” shall mean any individual, firm, company, association, society, corporation or group.
11. “pH” shall mean the logarithm of the reciprocal of the hydrogen-ion concentration. The concentration is the weight of hydrogen ions, in grams, per liter of solution. Neutral water, for example, has pH value of 7 and a hydrogen-ion concentration of 10-7.
12. “Properly Shredded Garbage” shall mean the wastes from the preparation, cooking and dispensing of food that have been shredded to such a degree that all particles will be carried freely under the flow conditions normally prevailing in public sewers, with no particle greater than ½ inch (1.27 centimeters) in any dimension.
13. “Public Sewer” shall mean a common sewer controlled by a governmental agency or public utility.
14. “Sanitary Sewer” shall mean a sewer that carries liquid and water-carried wastes from residences, commercial buildings, industrial plants and institutions together with minor quantities of ground, storm and surface waters that are not admitted intentionally.
15. “Sewer” shall mean a pipe or conduit that carries wastewater or drainage water.
16. “Slug” shall mean any discharge of water or wastewater which in concentration of any given constituent or in quantity of flow exceeds for any period of duration longer than fifteen (15) minutes more than five (5) times the average twenty-four (24) hour concentration or flows during normal operation and shall adversely affect the collection system and/or performance of the wastewater treatment works.
72
17. “Storm Drain” (sometimes termed “storm sewer”) shall mean a drain or sewer for conveying water, groundwater, subsurface water or unpolluted water from any source.
18. “Superintendent” shall mean the superintendent of wastewater facilities, and/or of wastewater treatment works, and/or of water pollution control of the City or an authorized deputy, agent or representative.
19. “Suspended Solids” shall mean total suspended matter that either floats on the surface of, or is in suspension in water, wastewater or other liquids, and that is removable by laboratory filtering as prescribed in “Standard Methods for the Examination of Water and Wastewater” and referred to as nonfilterable residue.
20. “Unpolluted Water” is water of quality equal to or better than the effluent criteria in effect or water that would not cause violation of receiving water quality standards and would not be benefited by discharge to the sanitary sewers and wastewater treatment facilities provided.
21. “Wastewater” (or “sewage”) shall mean the spent water of a community. From the standpoint of source, it may be a combination of the liquid and water-carried wastes from residences, commercial buildings, industrial plants and institutions, together with any groundwater, surface water and storm water that may be present.
22. “Wastewater Facilities” shall mean the structures, equipment and processes required to collect, carry away and treat domestic and industrial wastes and dispose of the effluent.
23. “Wastewater Treatment Works” shall mean an arrangement of devices and structures for treating wastewater, industrial wastes and sludge. Sometimes used as synonymous with “waste treatment plant” or “wastewater treatment plant” or “water pollution control plant.”
24. “Watercourse” shall mean a natural or artificial channel for the passage of water either continuously or intermittently.
7.0303 Use of Public Sewers Required
73
1. It shall be unlawful for any person to place, deposit or permit to be deposited in any unsanitary manner on public or private property within the City or in any area under the jurisdiction of the City any human or animal excrement, garbage or other objectionable waste.
2. It shall be unlawful to discharge to any natural outlet within the City or in any area under the jurisdiction of the City any sewage or other polluted waters, except where suitable treatment has been provided in accordance with subsequent provisions of this ordinance.
3. Except as hereinafter provided, it shall be unlawful to construct or maintain any privy, privy vault, septic tank, cesspool or other facility intended or used for the disposal of sewage.
4. The owner of all houses, buildings or properties used for human occupancy, employment, recreation or other purposes, situated within the City, and abutting on any street, alley or right-of-way in which there is now located or may in the future be located a public sanitary sewer, is hereby required at the owner’s expense to install suitable toilet facilities therein, and to connect such facilities directly with the proper public sewer in accordance with the provisions of this ordinance, within thirty (30) days after date of official notice to do so, provided that said public sewer is within 200 feet (61 meters) according to the North Dakota plumbing code of the property line.
7.0304 When Private Sewage Disposal Permitted
1. Where a public sanitary or combined sewer is not available under the provisions of Section 7.0303 (4), the building sewer shall be connected to a private wastewater disposal system complying with the provisions of this article.
2. Before commencement of construction of a private wastewater disposal system, the owner shall first obtain a written permit signed by the superintendent. The application for such permit shall be made on a form furnished by the City, which the applicant shall supplement by any plans, specifications and other information as are deemed necessary by the superintendent. A permit and inspection fee of $20.00 shall be paid to the City at the time the application is filed.
3. A permit for a private wastewater disposal system shall not become effective until the installation is completed to the satisfaction of the superintendent. The superintendent shall be allowed to inspect the work at any stage of construction, and in any event, the applicant for the permit shall notify the superintendent when the work is ready for final inspection, and before any underground portions are covered.
74
The inspection shall be made within 72 hours of the receipt of notice by the superintendent.
4. The type, capacities, location and layout of a private wastewater disposal system shall comply with all recommendations and/or regulations of the North Dakota State Department of Health. No septic tank or cesspool shall be permitted to discharge to any natural outlet or to the ground surface.
5. At such time as a public sewer becomes available to a property served by a private wastewater disposal system, as provided in Section 7.0303 (4), a direct connection shall be made to the public sewer within sixty (60) days in compliance with this ordinance, and any septic tanks, cesspools and similar private wastewater disposal facilities shall be cleaned of sludge and filled with suitable material.
6. The owner shall operate and maintain the private wastewater disposal facilities in a sanitary manner at all times, at no expense to the City. All sludge or solids, to be disposed of from a septic tank, cesspool or other individual method of disposal shall be disposed of by a licensed septic tank pumper in accordance with NDCC Section 23-19-01.
7. No statement contained in this article shall be construed to interfere with any additional requirements that may be imposed by the local health officer.
7.0305 Building Sewers and Connections
1. No unauthorized person shall uncover, make any connection with or opening into, use, alter or disturb any public sewer or appurtenance thereof without first obtaining a written permit from the superintendent.
2. There shall be two (2) classes of building sewer permits: (a) for residential and commercial service, and (b) for service to establishments producing industrial wastes. The owner or his agent, shall make application on a special form furnished by the City. The permit application shall be supplemented by any plans, specifications or other information considered pertinent in the judgment of the superintendent. A permit and inspection fee of $10.00 for a residential or commercial building sewer permit and $20.00 for an industrial building sewer permit shall be paid to the City at the time the application is filed.
75
3. All costs and expense incidental to the installation and connection of the building sewer shall be borne by the owner. The owner shall indemnify the City from any loss or damage that may directly or indirectly be occasioned by the installation of the building sewer.
4. A separate and independent building sewer shall be provided for every building; except where one building stands at the rear of another on an interior lot and no private sewer is available or can be constructed to the rear building through an adjoining alley, court, yard or driveway, the building sewer from the front building may be extended to the rear building and the whole considered as one building sewer. The City does not and will not assume any obligation or responsibility for damage caused by or resulting from any such single connection.
5. Old building sewers may be used in connection with new buildings only when they are found, on examination and test by the superintendent, to meet all requirements of this ordinance.
6. The size, slope alignment, materials of construction of all sanitary sewers including building sewers, and the methods to be used in excavating, placing of the pipe, jointing, testing and backfilling the trench, shall all conform to the requirements of the building and plumbing code or other applicable rules and regulations of the City. In the absence of suitable code provisions, specifications of the state building and plumbing codes shall apply.
7. Whenever possible, the building sewer shall be brought to the building at an elevation below the basement floor. In all buildings in which any building drain is too low to permit gravity flow to the public sewer, sanitary sewage carried by such building drain shall be lifted by an approved means and discharged to the building sewer.
8. No person shall make connection of roof downspouts, foundation drains, areaway drains or other sources of surface runoff or groundwater to a building sewer, or building drain which in turn is connected directly or indirectly to a public sanitary sewer unless such connection is approved by the superintendent and the North Dakota State Department of Health.
9. The applicant for the building sewer permit shall notify the superintendent when the building sewer is ready for inspection and connection to the public sewer. The connection and testing shall be made under the supervision of the superintendent or his representative.
76
10. All excavations for building sewer installation shall be adequately guarded with barricades and lights so as to protect the public from hazard. Streets, sidewalks, parkways and other public property disturbed in the course of the work shall be restored in a manner satisfactory to the City.
7.0306 Use of Public Sewers
1. No person shall discharge or cause to be discharged any unpolluted waters such as storm water, surface water, groundwater, roof runoff, subsurface drainage or cooling water to any building drain or sewer which in turn is connected directly or indirectly to the sanitary sewer unless such connection is approved by the superintendent and the North Dakota State Department of Health.
2. No person shall discharge or cause to be discharged any of the following described water or wastes to any public sewers:
a. Any gasoline, benzene, naphtha, fuel oil or other flammable or explosive liquid, solid or gas.
b. Any waters containing toxic or poisonous solids, liquids or gases in sufficient quantity, either singly or by interaction with other wastes, to injure or interfere with any sewage treatment process, constitute a hazard to humans or animals, create a public nuisance, or create any hazard in the receiving waters of the wastewater treatment plant.
c. Solid or viscous substances in quantities or of such size capable of causing obstruction to the flow in sewers or other interference with the proper operation of the wastewater facilities such as, but not limited to ashes, cinders, sand, mud, straw, shavings, metal, glass, rags, feathers, tar, plastics, wood, unground garbage, whole blood, paunch manure, hair and fleshings, entrails and paper dishes, cups, milk containers, etc. either whole or ground by garbage grinders.
3. If any waters or wastes are discharged, or are proposed to be discharged to the public sewers, which waters contain the substances or possess the characteristics enumerated in 7.0306 (2), and which in the judgment of the superintendent, may have a deleterious effect upon the wastewater facilities, processes, equipment, or receiving waters, or which otherwise create a hazard to life or constitute a public nuisance, the superintendent may:
a. Reject the wastes;
77
b. Require pretreatment to an acceptable condition for discharge to the public sewers;
c. Require control over the quantities and rates of discharge; and/or
d. Require payment to cover the added costs of handling and treating the wastes not covered by sewer charges.
If the superintendent permits the pretreatment or equalization of waste flows, the design and installation of the plants and equipment shall be subject to the review and approval of the superintendent and the North Dakota State Department of Health.
4. When required by the superintendent, the owner of any property serviced by a building sewer carrying industrial wastes shall install a suitable structure together with such necessary meters and other appurtenances in the building sewer to facilitate observation, sampling and measurement of the wastes. Such structures, when required, shall be accessibly and safely located and shall be constructed in accordance with plans approved by the superintendent. The structure shall be installed by the owner at his expense and shall be maintained by the owner so as to be safe and accessible at all times.
5. The superintendent may require a use of sewer services to provide information needed to determine compliance with this ordinance. These requirements may include:
a. Wastewaters discharge peak rate and volume over a specified time period.
b. Chemical analyses of wastewaters.
c. A plot plan of sewers of the user’s property showing sewer and pretreatment facility location.
d. Details of systems to prevent and control the losses of materials through spills to the City sewer.
6. All measurements, tests and analyses of the characteristics of waters and wastes to which reference is made in this ordinance shall be determined in accordance with the latest edition of “Standard Methods for the Examination of Water and Wastewater,” published by the American Public Health Association. Sampling methods,
78
location, times, durations and frequencies are to be determined on an individual basis by the superintendent.
7. No statement contained in this section shall be construed as preventing any special agreement or arrangement between the City and any industrial concern whereby an industrial waste of unusual strength or character may be accepted by the City for treatment.
7.0307 Powers and Authority of Inspectors
The superintendent and other duly authorized employees of the City bearing proper credentials and identification shall be permitted to enter all properties for the purposes of inspection, observation, measurement, sampling and testing pertinent to discharge to the community system in accordance with the provisions of this ordinance.
7.0308 Penalties
1. Any person found to be violating any provision of this ordinance except Section 7.0307 shall be served by the City with written notice stating the nature of the violation and providing a reasonable time limit for the satisfactory correction thereof. The offender shall, within the period of time stated in such notice, permanently cease all violations.
2. Any person who shall continue any violation beyond the time limit provided for in Section 7.0308(1), shall be guilty of an infraction, and on conviction thereof shall be fined in the amount not exceeding five hundred dollars ($500.00) for each violation. Each day in which any such violation shall continue shall be deemed a separate offense.
3. Any person violating any of the provisions of this ordinance shall become liable to the City for any expense, loss or damage occasioned the City by reason of such violation.
ARTICLE 4 - Sewer Surcharge
7.0401 Purpose
The purpose of this article shall be to generate sufficient revenue to pay all costs for the operation and maintenance of the complete wastewater system. The costs shall be distributed to all users of the wastewater system in proportion to each user’s contribution to the total loading of the treatment works. Factors such as strength (BOD and TSS), volume and delivery flow rate characteristics shall be considered and included as the basis for the user’s contribution to
79
ensure a proportional distribution of operation and maintenance costs to each user.
7.0402 Determining the Total Annual Cost of Operation and Maintenance
The City or the city engineer shall determine the total annual costs of operation and maintenance of the wastewater system which are necessary to maintain the capacity and performance, during the service life of the treatment works, for which such works are designed and constructed. The total annual cost of operation and maintenance shall include, but need not be limited to, labor, repairs, equipment replacement, maintenance, necessary modifications, power, sampling, laboratory tests and a reasonable contingency fund.
7.0403 Determining Each User’s Wastewater Contribution Percentage
The City or the city engineer may determine each user’s average daily volume of wastewater, which has been discharged to the wastewater system, which shall then be divided by the average daily volume of all wastewater discharged to the wastewater system, to determine such user’s volume contribution percentage. The amount used as the total average daily volume of wastewater shall exclude infiltration and inflow. The City or the city engineer shall determine each user’s average daily poundage of 5-day 20-degree Centigrade biochemical oxygen demand which has been discharged to the wastewater system which shall then be divided by the average daily poundage of all 5-day 20-degree Centigrade biochemical oxygen demand discharged to the wastewater system to determine each user’s Biochemical oxygen demand contribution percentage.
The City or the superintendent or city engineer may determine each user’s average daily poundage of suspended solids that has been discharged to the wastewater system which shall then be divided by the average daily poundage of all suspended solids discharged to the wastewater system, to determine such user’s suspended solids contribution percentage. Each user’s volume contribution percentage, biochemical oxygen demand contribution percentage and suspended solids contribution percentage shall be multiplied by the annual operation and maintenance costs for the total volume, the total 5-day 20-degree Centigrade biochemical oxygen demand and the total suspended solids for the wastewater system, respectively.
7.0404 Determining a Surcharge System for Users with Above Normal Volume, BOD and TSS
80
The City or the city engineer may determine the average total suspended solids (TSS) and biochemical oxygen demand (BOD) daily loadings for the average residential user and residential user class. The City will assess a surcharge rate for all non-residential users discharging wastes with volume, BOD and TSS strengths greater than the average residential user. Such users will be assessed a surcharge sufficient to cover the costs of treating such users above-normal strength wastes and/or volume. Normal strength wastes are considered to be 200 mg/1 BOD and 250 mg/1TSS.
7.0405 Surcharge Rate Schedule for Above Normal Volume of Wastes
Residential users are considered to be one class of user and are hereby levied a monthly charge as determine by the City Council from time to time. Non-residential users with flows no greater than the average residential user’s flow of 4,000 gallons per month and with BOD and TSS no greater than the average residential user’s strength will be levied the same monthly charge as the average residential user.
Non-residential users with volumes greater than the average residential user will pay an additional charge of 60 cents per 1,000 gallons per month for all flows greater than the average residential user’s flow of 4,000 gallons per month.
7.0406 Surcharge Rate Schedule for Above Normal Strength Wastes
Any non-residential user with BOD and TSS greater than the average residential user’s strength will pay a surcharge in accordance with the rates determined by the City or its engineer.
The City or the city engineer may determine the total suspended solids (TSS) and 5-day biochemical oxygen demand (BOD5) daily loadings for the average residential user and/or user class or in lieu of such determination can consider the average residential strength wastes to be 200 mg/1 BOD5 and 250 mg/1 TSS. The City will assess a surcharge rate for all non-residential users discharging wastes with BOD and TSS strengths greater than the average residential user. The surcharge will be sufficient to cover the costs of treating such users above normal strength wastes. Such users will pay an additional user charge in an amount as determined from time to time per 1,000 gallons for each 25 mg/1 or fraction thereof over 200 mg/1 of BOD5 and per 1,000 gallons for each 25 mg/1 or fraction thereof over 250 mg/1 TSS.
7.0407 Determining Each User’s Wastewater Service Charge
81
Each non-residential user’s wastewater cost contributions as determined in Sections 7.0405 and 7.0406 may be added together to determine such user’s annual wastewater service charge. Residential users may be considered to be one class of user and an equitable service charge may be determined for each user based on an estimate of the total wastewater contribution of this class of user. The City Council may classify industrial, commercial and other non-residential establishments as a residential user, provided that the wastes from these establishments are equivalent to the wastes from the average residential user with respect to volume, suspended solids and 5-day 20-degree Centigrade biochemical oxygen demand. Each user’s wastewater treatment cost contribution will be assessed in accordance with the attached rate schedule.
7.0408 Payment of the User’s Wastewater Service Charge and Penalties
The City may submit an annual statement to the user for the user’s annual wastewater service charge or one-twelfth of the user’s annual wastewater service charge may be included with the monthly water and/or wastewater utility billing. The City shall add a penalty of 10 percent per month if the payment is not received by the City within thirty days. Should any user fail to pay the user wastewater service charge and penalty within three months of the due date, the City may stop the wastewater service to the property.
7.0409 Review of Each User’s Wastewater Service Charge
The City shall review the total annual cost of operation and maintenance as well as each user’s wastewater contribution percentage on an annual basis and will revise the system as necessary to assure equity of the service charge system established herein and to assure that sufficient funds are obtained to adequately operate and maintain the wastewater system.
ARTICLE 5 - Adoption of State Plumbing Code
7.0501 Adoption
To promote the protect the public health there is hereby adopted the State Plumbing Code, which has been adopted by the State Plumbing Board and approved by the State Health Department, consisting of rules and regulations governing plumbing work, and the whole thereof, of which not less than on (1) copy is on file in the office of the City Auditor, and the same is hereby adopted as fully as if set out at length herein and all plumbing work in the City shall comply with said code.
7.0502 Plumbing Code - Enforcement of Provisions
82
All plumbing work and all private sanitary drains and cesspools now existing, or hereafter to be installed, altered or repaired in any building or in or under any private property within the corporate limits shall be under the supervision and regulation of the superintendent of the water and sewer department, whose duty it shall be to enforce all the provisions of this code relating thereto and from time to time to make such rules and regulations as may be appropriate for the execution of the same.
7.0503 Plumbing Code - Changes in Existing Installations
The superintendent of the water and sewer department is hereby given authority to order the repair, alteration or removal of any sanitary sewer connection or plumbing, any connection to storm water sewer, or any private sanitary drain, cesspool or privy, which in his judgment is so installed or is in such condition as to be unsanitary, or to constitute a public nuisance or menace to health. In case of such repair, alteration or removal, if the plumbing code is not observed and connections not properly executed by the owner or owners thereof, in accordance with his directions, he may cause the same to be discontinued from any source of water supply. It shall thereafter be unlawful for any person in any manner to use any such installation, or to supply water thereto, until the same shall have been put in a safe and sanitary condition according to his direction.
7.0504 Plumbing Code - New Installations
All plumbing work and all excavations in the public streets or alleys, the cutting and replacing of pavement, laying of water and sewer connections and connections to storm water sewers and all construction of private sanitary drains and cesspools within the corporate limits shall be undertaken and executed only by a master plumber or other persons as have obtained a general license for such work together with a permit for each separate job, provided that the tapping of water mains and the placing of corporate cocks therein shall be done only under the direction of city employees.
ARTICLE 6 - General Penalty Provision
7.0601 Penalty for Violation of Chapter
Any person, firm or corporation violating any of the provisions of this chapter not providing for a penalty shall be guilty of an infraction and, upon conviction thereof by a court of competent jurisdiction, shall be subject to a fine of not exceeding five hundred dollars ($500.00) for each violation.
83
CHAPTER EIGHT
BUSINESS REGULATIONS AND LICENSES
ARTICLE 1 - General Provisions
8.0101 Licenses
8.0102 Licenses - Application
8.0103 Licenses - Granting
8.0104 Licenses - Term
8.0105 Licenses - Not Transferable
8.0106 Licenses - Revocation
8.0107 Licenses - Posting of
8.0108 Licenses - Short Term
8.0109 Licenses - Enforcement
ARTICLE 2 - Transient Merchants
8.0201 Definitions
8.0202 License Required
8.0203 License Fee
8.0204 License - Application for
8.0205 Bond
8.0206 Service of Process
8.0207 Exhibiting License
8.0208 Transfer
8.0209 Revocation
8.0210 Expiration of License
ARTICLE 3 - Hawkers and Peddlers
8.0301 Definitions
8.0302 License Required
8.0303 Exceptions
8.0304 License - Application for
8.0305 Fees
8.0306 Exhibition of License
8.0307 Transfer
8.0308 Use of Streets
8.0309 Revocation
ARTICLE 4 - Runners, Solicitors and Canvassers
8.0401 Definitions
8.0402 Exceptions
8.0403 License Required
84
8.0404 License - Application for
8.0405 Fees
8.0406 Exhibition of License
8.0407 Transfer
8.0408 Use of Streets
8.0409 Revocation
ARTICLE 5 - Alcoholic Beverages
8.0501 Definitions
8.0502 Exceptions
8.0503 License Required
8.0504 Licenses - Classes of - Fees
8.0505 Licenses - Term of
8.0506 License - Qualifications for
8.0507 Application for Liquor License
8.0508 License - Applicant Fitness
8.0509 License - Location of
8.0510 License - Granting
8.0511 License - Limit to One Applicant
8.0512 License - Posting of
8.0513 License - Transfer of
8.0514 License Fees - Disposition of
8.0515 Hours and Time of Sale - Penalty
8.0516 Licensee’s Responsibility
8.0517 Gambling Prohibited - Exceptions
8.0518 Cashing Certain Checks Prohibited
8.0519 Sales Prohibited - Persons
8.0520 Age Identification
8.0521 Street Sales Prohibited
8.0522 Premises, Equipment of
8.0523 Closed or Screened Areas
8.0524 Purchase from Licensed Wholesaler
8.0525 Toilets Required
8.0526 Deliveries - Off Licensed Premises
8.0527 Termination or Revocation of Licenses
8.0528 Penalties
ARTICLE 6 - Shows, Carnivals and Circuses
8.0601 License Required
8.0602 Fees for
ARTICLE 7 - Validity
8.0701 Validity
85
ARTICLE 8 - Penalty
8.0801 Penalty
86
CHAPTER EIGHT
BUSINESS REGULATIONS AND LICENSES
ARTICLE 1 - General Provisions
8.0101 Licenses
Unless otherwise specifically provided, licenses and permits required for the carrying on of a business or trade within the City shall be applied for, issued, terminated and revoked according to the provisions of this article.
8.0102 Licenses - Application
Any person desiring a license or permit under any ordinance of the City shall make a written application to the City therefore upon application blanks furnished by the City Auditor and shall file the same with the City Auditor. The application shall state the purpose for which the license or permit is desired, for what length of time, the place where the business is to be carried on and the proposed sureties on any required bonds.
8.0103 Licenses - Granting
The City Auditor shall receive applications for licenses and permits and grant the same in all cases where expressly authorized upon the terms and conditions specified by ordinance. If the City Auditor shall not feel authorized to grant any particular application for license or permit for any purpose not clearly named by ordinance, the City Auditor shall report such application to the next meeting of the City Council for their action thereon.
8.0104 Licenses - Term
1. No license or permit shall be granted for a longer period than one (1) year.
2. All yearly licenses or permits shall commence on the first day of January in each year and expire on the last day of December in each year. All semi-annual licenses or permits shall commence on the first day of January and the first day of July and expire on the last day of June and the last day of December respectively.
3. No license or permit shall be valid until signed and sealed nor shall any person be deemed licensed until a license shall be duly issued to him or her.
87
4. Each license shall be dated the day of issuance thereof; but if the applicant or applicants shall have been acting without a license, the license shall commence with the date business commenced. If the business calls for a yearly license, then a license shall commence on the first day of January in the year for which the license shall be issued.
5. The date of issuance of the license, together with the time of commencing and expiration shall be given in the license and the license record.
8.0105 Licenses - Not Transferable
No license or permit shall be assignable or transferable except by permission of the City Council. No person other than the person to whom the license is granted shall be authorized to do business or act under such license or at any other than the place specified therein. The City may grant the continuance of the business licensed to any other portion of the City, such permission to be certified on the license by the City Auditor. No license shall authorize any person to act under it at more than one (1) place at the same time, or at any other place than is therein specified. Whoever shall violate any of the provisions of this section shall be deemed to be acting without a license and shall be subject to the same penalty as prescribed for acting without a license.
8.0106 Licenses - Revocation
All licenses granted shall be subject to ordinances in force at the time of issuing thereof or which may be subsequently passed by the City Council. Any person who shall violate any provision of this article relating to his or her license may be proceeded against for any fine or penalty imposed thereby, and his or her license may be revoked or forfeited in the discretion of the City Council or the court before which any action may be brought for the recovery of any fine or penalty.
Where not otherwise provided, any license may be revoked by the City Council at any time for cause. “Cause” shall include, but not be limited to, the following:
1. Violation of the laws of the State of North Dakota or any of the ordinances of the City dealing with or pertaining to the business or trade licensed.
2. The willful making of any false statement as to a material fact in the application for license.
88
3. Permitting any disorderly or immoral practices upon the premises where the licensee is licensed to carry on the business or trade.
4. The death of a licensee.
5. When the licensee ceases business at the location licensed.
When the license is terminated or revoked for cause, the licensee shall not be entitled to any return of any portion of the license fee previously paid to the City.
8.0107 Licenses - Posting of
All licenses and permits issued by the City for the operation of any business establishment, trade or any part of the operation thereof, shall be posted in a conspicuous place in the main business establishment.
8.0108 Licenses - Short Term
No license, unless otherwise specified, shall be issued for a fractional part of the year or half-year, but shall relate back if taken out subsequent to the first day of January or July respectively, of each year.
8.0109 Licenses - Enforcement
All city officials having duties to perform with reference to licensed premises, including all police officers, shall have authority to enter the licensed premises with or without a search warrant to check for violations of ordinances or state laws by the licensee.
ARTICLE 2 - Transient Merchants
8.0201 Definitions
For the purpose of this article:
1. “Transient merchant” includes any person, partnership or corporation who engages in, does or transacts any temporary or transient business in the City of Center or within ½ mile of the municipal limits, either in one locality or in traveling from place to place selling goods, wares and merchandise who does not intend to become a permanent merchant of the City and who, for the purpose of carrying on such business, hires, leases, occupies or uses a building, structure, lots, tract, or motor vehicles for the exhibition and sale of such goods, wares and merchandise. The person, individual, co-partnership or corporation so engaged shall not be relieved from complying with the
89
provisions of this article by reason of associating temporarily with any local dealer, merchant or auctioneer or by conducting such transient business in connection with, as a part of, or in the name of any local dealer, merchant or auctioneer.
2. “Merchandise” shall not include any livestock or agricultural product.
8.0202 License Required
It shall be unlawful to do business in the City as a transient merchant without having first secured a license as is herein provided. For the purpose of this article, any merchant engaging or intending to engage in business as a merchant in the City for a period of time not exceeding 100 days shall be considered as a transient merchant, provided that peddlers shall not be considered transient merchants.
8.0203 License Fee
The license fee to be required of all transient merchants for the transaction of such business within the City is hereby fixed at the sum of $25.00 per day for each and every day during which any such transient merchants shall transact business in the City. (Source: NDCC Section 51-04-09)
8.0204 License - Application for
Applicants for license under this article, whether an individual, partnership or corporation, shall file with the City Auditor a written sworn application signed by the applicant if an individual, by all partners if a partnership and by the president if a corporation or limited liability company, showing:
1. Applicant’s name, present residence, present home address, present business address, and if a corporation or limited liability company, under the laws of what state the same is incorporated;
2. The name, present residence, present home address and present business address of the person or persons having the management or supervision of applicant’s business during the time that it is proposed that it will be carried on in the City;
3. The residence, business address and type of business in which applicant has been engaged in the previous two (2) years;
4. The residence, business address and type of business in which the person having the management or supervision of applicant’s business has been engaged in the previous two (2) years;
90
5. The place or places in the City, where it is proposed to carry on applicant’s business, and the length of time during which it is proposed that said business shall be conducted;
6. The kind of business to be conducted;
7. The name and address of the auctioneer, if any, who will conduct the sale; and
8. A statement of the nature, character and quality of the goods, wares or merchandise to be sold or offered for sale by applicant in the City, the invoice value and quality of such goods, wares and merchandise, whether the same are proposed to be sold from stock in possession or by sample; at auction, by direct sale or by indirect sale and by taking orders for future delivery; where the goods or property proposed to be sold are manufactured or produced, and where such goods or products are located at the time said application is filed.
8.0205 Bond
Before any license shall be issued to a transient merchant for engaging in business in this City, the applicant therefore shall file with the City Auditor a bond in favor of the City in the sum of $1,000 executed by the applicant, as principal, and a responsible surety upon which service of process may be made in the State of North Dakota; said bond not to be revocable nor to terminate prior to passage of two years time after the expiration of the license issued pursuant thereto nor until due notice that the terms of the bond are to be cancelled has been given to the City Auditor. The bond is to be approved by the city attorney, conditioned that the applicant shall comply fully with all of the provisions of the ordinances of the City and the statutes of the State of North Dakota regulating and concerning the sale of goods, wares and merchandise and will pay all judgments rendered against the applicant for any violation of said ordinances or statutes, together with all judgments and costs that may be recovered against him by any person or persons for damage growing out of any misrepresentation or deception practiced on any person transacting business with the applicant, whether misrepresentations or deceptions were made or practiced by the owners or by their servants, agents or employees, of any character whatsoever, printed or circulated with reference to the goods, wares and merchandise sold or any part thereof. Action on the bond may be brought in the name of the City to the use of the aggrieved person.
8.0206 Service of Process
Before any license as herein provided shall be issued for engaging in business as a transient merchant, as herein defined, in this City, such applicant shall file with the City Auditor an instrument nominating and appointing the City
91
Auditor his true and lawful agent with full power and authority to acknowledge service of notice of process for and on behalf of the applicant in respect to any matters connected with or arising out of the business transacted under the license and the bond given as required by this article, or for the performance of the conditions of said bond or for any breach thereof. This instrument shall also contain recitals to the effect that the applicant for license consents and agrees that service of any notice or process may be made upon said agent, and when so made shall be taken and held to be as valid as if personally served upon the person or persons applying for the license under this article, and waiving all claim or right of error by manner of service. Immediately upon service of process upon the City Auditor, as herein provided, the City Auditor shall send to the licensee at his last known address, by registered mail, a copy of said process.
8.0207 Exhibiting License
The license issued under this article shall be posted conspicuously in the place of business named therein. In the event that such person applying for a license shall desire to do business in more than one place within the City, copies of such license shall be posted conspicuously in each place of business.
8.0208 Transfer
Any license issued to a transient merchant in the City shall be non-transferable.
8.0209 Revocation
1. Any license issued pursuant to this article may be revoked by the City Council, after notice and hearing, for any of the following causes:
a. Any fraud, misrepresentation or false statement contained in the application for license;
b. Any fraud, misrepresentation or false statement made in connection with the selling of goods, wares or merchandise;
c. Any violation of this article;
d. Conviction of the licensee of any felony or of a misdemeanor involving moral turpitude; or
e. Conducting the business licensed under this article in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public.
92
2. Notice of hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of the complaint and the time and place of the hearing. Such notice shall be mailed, postage prepaid, to the licensee at his last known address at least five (5) days prior to the date set for the hearing.
8.0210 Expiration of License
All licenses issued under the provisions of this article shall expire at the expiration of the period for which application has been made and prepaid, to be renewable by the City Auditor upon application and payment therefore.
ARTICLE 3 - Hawkers and Peddlers
8.0301 Definitions
The words “hawker” and “peddler” as used herein shall include any person, partnership, corporation, or other organization, whether a resident of the City or not, traveling by foot, automotive vehicle or other type of conveyance from place to place, or house to house, carrying, conveying or transporting goods or merchandise, offering and exposing the same for sale, or making sales and delivering articles to purchasers, or sells from an automotive vehicle or other vehicle or conveyance.
8.0302 License Required
It shall be unlawful for any person to engage in the business of hawker or peddler of any merchandise, article or thing without having first secured a license therefore.
8.0303 Exceptions
No license shall be required for peddling, vending or marketing farm products raised in the State of North Dakota, or fish, vegetables, fruits, nuts, cake, candy, ice cream or other light products or refreshments.
8.0304 License - Application for
Applicants for license under this article must file with the City Auditor a sworn application in writing, which shall give the following information:
1. Name, age and sex of the applicant;
2. Address (legal and local);
93
3. A brief description of the nature of the business and the goods to be sold;
4. If employed, the name and address of the employer, together with credentials establishing the exact relationship;
5. The length of time for which the right to do business is desired;
6. If a vehicle is to be used, a description of the same, together with license number; and
7. A statement as to whether or not the applicant has been convicted of any crimes, misdemeanors or violations of any municipal ordinance, the nature of the offense(s) and the punishment or penalty assessed therefore.
8.0305 Fees
The license fee to be required of all hawkers and peddlers for the transaction of business within the City shall be in the sum of $25.00 per day for each day or portion of the day which any such hawker or peddler shall transact business in the City.
8.0306 Exhibition of License
Hawkers and peddlers are required to exhibit their licenses at the request of any citizen.
8.0307 Transfer
Any license issued under the provisions of this article shall be non-transferable.
8.0308 Use of Streets
No hawker or peddler shall have any exclusive right to any location in the public streets, nor be permitted to operate in any congested area where the operations might impede or inconvenience the public. For the purpose of this article, the judgment of a police officer, exercised in good faith, shall be deemed conclusive as to whether the area is congested or the public impeded or inconvenienced.
94
8.0309 Revocation
1. Licenses issued under the provisions of this article may be revoked by the City Council of the City after notice and hearing for any of the following causes:
a. Fraud, misrepresentation or false statement contained in the application for license;
b. Fraud, misrepresentation or false statement made in the course of carrying on his business;
c. Any violation of this article;
d. Conviction of any crime or misdemeanor involving moral turpitude;
e. Conducting the business of hawking or peddling in an unlawful manner or in such a manner as to constitute a breach of peace or constitute a menace to the health, safety or general welfare of the public.
2. Notice of a hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of complaint and the time and place of hearing. Such notice shall be mailed, postage prepaid, to the licensee at the licensee’s last known address at least five (5) days prior to the date set for the hearing.
ARTICLE 4 - Runners, Solicitors and Canvassers
8.0401 Definitions
A “runner,” “canvasser” or “solicitor” is defined as any individual, whether resident of the City or not, traveling either by foot, motor vehicle or any other type of conveyance, from place to place, taking or attempting to take orders for sale of goods, wares and merchandise, personal property of any nature whatsoever for future delivery, or for services to be furnished or performed in the future. The definition shall include any person who, for himself, or for another person, firm or corporation hires, leases, uses or occupies any building, structure, tent, railroad boxcar, boat, hotel room, lodging house, apartment, shop or any other place within the City for the sole purpose of exhibiting samples and taking orders for future delivery.
95
8.0402 Exceptions
No license shall be required hereunder for runners, solicitors or canvassers of regular retailers of goods, wares and merchandise and personal property, but only for those runners, solicitors and canvassers selling directly to the consumer.
8.0403 License Required
It shall be unlawful for any person to engage in the business of runners, solicitors and canvassers of any merchandise, article or thing without having first secured a license therefore.
8.0404 License - Application for
Applicants for license under this article must file with the City Auditor a sworn application in writing, which shall give the following information:
1. Name, age and sex of the applicant;
2. Address (legal and local);
3. A brief description of the nature of the business and the goods to be sold;
4. If employed, the name and address of the employer, together with credentials establishing the exact relationship;
5. The length of time for which the right to do business is desired;
6. If a vehicle is to be used, a description of the same, together with license number; and
7. A statement as to whether or not the applicant has been convicted of any crimes, misdemeanors or violations of any municipal ordinance, the nature of the offense(s) and punishment or penalty assessed therefore.
8.0405 Fees
The license fee to be required of all runners, solicitors and canvassers for the transaction of business within the City shall be in the sum of Twenty-five dollars ($25.00) per day for each day or portion of the day which such runner, solicitor or canvasser shall transact business in the City.
96
8.0406 Exhibition of License
Runners, solicitors and canvassers are required to exhibit their licenses at the request of any citizen.
8.0407 Transfer
Any license issued under the provisions of this article shall be non-transferable.
8.0408 Use of Streets
No runner, solicitor or canvasser shall have any exclusive right to any location in the public streets, nor shall any be permitted a stationary location, nor shall he be permitted to operate in any congested area where his operations might impede or inconvenience the public. For the purpose of this article, the judgment of a police officer, exercised in good faith, shall be deemed conclusive as to whether the area is congested or the public impeded or inconvenienced.
8.0409 Revocation
1. Licenses issued under the provisions of this article may be revoked by the City Council of the City after notice and hearing, for any of the following causes:
a. Fraud, misrepresentation or false statement contained in the
application for license;
b. Fraud, misrepresentation or false statement made in the course of carrying on his or her business;
c. Any violation of this article;
d. Conviction of any felony or misdemeanor involving moral turpitude;
e. Conducting the business of soliciting and canvassing in an unlawful manner or in such a manner as to constitute a breach of peace or constitute a menace to the health, safety or general welfare of the public.
2. Notice of a hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of complaint and the time and place of hearing. Such notice shall be mailed, postage prepaid, to the licensee at his last known address at least five days prior to the date set for the hearing.
97
ARTICLE 5 - Alcoholic Beverages
8.0501 Definitions
For the purpose of this article:
1. “Alcoholic beverages” shall mean any liquid suitable for drinking by human beings, which contains one-half of one percent or more of alcohol by volume.
2. “Beer” shall mean any malt beverage containing more than one-half of one percent of alcohol by volume.
3. “Licensee” shall mean any person, firm, corporation, association or club which shall have secured a license pursuant to provisions of this chapter or their agent or employee.
4. “Liquor” shall mean any alcoholic beverage except beer.
5. “Person” shall mean and include any individual, firm, corporation, association, club, co-partnership, society or any other organization; and shall include the singular and the plural.
6. “Sale” and “sell” shall mean all manner or means of furnishing alcoholic beverages, including the selling, exchange, barter, disposition of and keeping for sale of such alcoholic beverages.
7. “Package” and “original package” shall mean and include any container or receptacle containing an alcoholic beverage, which container or receptacle is corked or sealed by the manufacturer thereof and which cork or seal has not been removed or broken prior to the sale of such package to the purchaser.
8. “Club” or “lodge” shall include any corporation or association organized for civic, fraternal, social or business purposes or the promotion of sports, which has at least 200 members at the time of application for license.
9. “Retail sale” shall mean the sale of alcoholic beverages for use or consumption and not for resale.
10. “Off-sale” shall mean the sale of alcoholic beverages in original packages for consumption off or away from the premises where sold, and an off-sale license shall authorize the person named therein to conduct such off-sales only at the place designated in such license and not elsewhere, and shall not permit the opening of the package
98
sold on the premises where sold. Such sale must in each case be completed by delivery of the liquor sold to the actual purchaser thereof on the licensed premises.
11. “On-sale” shall mean the sale of alcoholic beverages for consumption only on the premises where sold, and an on-sale license shall authorize the licensee to conduct such on-sales only at the place designated in such license and not elsewhere.
8.0502 Exceptions
1. This article shall not apply to wines delivered to priests, rabbis and ministers for sacramental use.
2. This article shall not be construed to apply to the following articles, when they are unfit for beverage purposes:
a. Denatured alcohol produced and used pursuant to Acts of Congress and the regulations thereunder.
b. Patent, proprietary, medical, pharmaceutical, antiseptic and toilet preparations.
c. Flavoring extracts, syrups and food products.
d. Scientific, chemical and industrial products; nor to the manufacturer or sale of said articles containing alcohol.
8.0503 License Required
No person shall sell at retail within the Center city limits any alcoholic beverage without first having obtained a license therefore as herein provided. This section shall not apply to public carriers engaged in interstate commerce.
8.0504 Licenses - Classes of - Fees
1. An on- and off-sale liquor license has an annual fee of nine hundred and no/100 ($900.00).
2. An on- and off-sale beer and wine license has an annual fee of three hundred and no/100 ($300.00).
3. An off sale liquor license has an annual fee of six hundred and no/100 ($600.00).
99
4. An off sale beer and wine license has an annual fee of two hundred and no/100 ($200.00).
5. An on sale beer and wine license has an annual fee of two hundred and no/100 ($200.00).
8.0505 Licenses - Term of
1. All licenses issued hereunder shall be for a period of not more than one (1) year and shall expire on the 31st day of December in each year. Where a license is granted for a period less than one (1) year, any subsequent renewal thereof must be made for the full annual term.
2. If an application is made for license hereunder during the license year for the unexpired portion of such year, the fees for said license shall be pro-rated to represent the number of months during which said license will be in effect.
8.0506 License - Qualifications for
No retail license shall be issued to any person unless the applicant shall file a sworn application, accompanied by the required fee, showing the following qualifications:
1. Applicant, if an individual, must be a citizen of the United States, a resident of the State of North Dakota and a person of good moral character.
2. If applicant is a corporation or limited liability company, the manager of the licensed premises and the officers, directors, stockholders, or owners must be citizens of the United States and persons of good moral character. Corporate applicants must first be properly registered with the North Dakota Secretary of State.
3. If applicant is a partnership, all the members must be citizens of the United States, residents of North Dakota, and of good moral character.
4. Applicant or manager must not have been convicted of a felony.
5. Building in which business is to be conducted must meet local and state requirements regarding the sanitation and safety.
6. Taxes on property for which application for license is made must not be delinquent.
100
7. If applicant’s place of business is to be conducted by a manager or agent, said manager or agent must possess the same qualifications required of the licensee.
8.0507 Application for Liquor License
Any person desiring a license to sell alcoholic beverages at retail as hereinbefore described shall make and present a written verified application to the City Council, filed with the City Auditor, containing the following information:
1. The name and address of the applicant; if the applicant is a partnership, the name and address and place of residence of each member of said partnership; if the applicant is a corporation or limited liability company, the name and address of the officers of the corporation or company and the manager of the licensed premises.
2. Whether the applicant is a citizen of the United States, if the applicant is a partnership the same preceding information for each member of said partnership; and if the applicant is a corporation or limited liability company, the date of incorporation, the state where incorporated, the purpose for which said corporation was incorporated and if such corporation is a subsidiary of any corporation, the name of the parent corporation.
3. The legal description and the address of the premises for which license is sought.
4. The date on which the applicant acquired title to the premises sought to be licensed, and if the applicant does not have title to said premises, the name and address of the owner of the premises together with a copy of the applicant’s lease, if written, under which he holds possession of said premises.
5. Whether there are any delinquent taxes against the premises sought to be licensed.
6. Whether the applicant has ever engaged in the sale or distribution of alcoholic beverages prior to this application, and if so, the date and type of business and place where so engaged whether within or without the State of North Dakota, the date the applicant first began to operate.
7. Whether the applicant has ever been convicted of the violation of any law of the United States or of any state, or of any local ordinance with regard to the manufacture, sale, distribution or possession of
101
alcoholic beverages, and if so, the dates, names of place and courts in which said convictions were had.
8. Whether the applicant has ever had a license for the sale of alcoholic beverages revoked for any violation of state laws or local ordinances, and if so, the names of the bodies revoking such license, the dates of such revocation and the reasons assigned therefore.
9. Whether the applicant has ever been convicted of any felony crime, in this state or any other state, or under any federal law, and if so, the date of such conviction, the name of the crime for which convicted, the amount and terms of sentence passed, and the court in which convicted.
10. Whether the applicant has any interest whatsoever directly or indirectly, in any other establishment dispensing alcoholic beverages, either at wholesale or retail, within or without the State of North Dakota, and if so, the names and addresses of such establishments. This provision is meant to include the holders of capital stock in any corporation dealing in alcoholic beverages, either at wholesale or retail, within the borders of the United States.
11. The classification of license applied for.
12. If the applicant is a lodge or a club, the date of organization, the number of members, the purpose for which organized and the purpose for which profits to be derived from the sale of alcoholic beverages are to be applied; and whenever required by the City Council a list of the members belonging to such lodge or club.
13. A statement by the applicant that he consents to entry and inspection of the premises for which license is sought at any time by any officer of this City, Oliver County, or the State of North Dakota.
8.0508 License - Applicant Fitness
The Chief of Police or such other person or officer as may be designated by the City Council shall, upon the filing of an application, investigate the facts as stated in the application and the character, reputation and fitness of the applicant and shall report on said matters to the City Council.
8.0509 License - Location of
No license shall be issued or transferred to any person, firm or corporation to engage in the sale of beer or alcoholic beverages within the City without approval as to the location of said licensed business by the City Council. The
102
application for approval shall be in writing and shall be filed with the Auditor. At the time of hearing, the board shall in its discretion determine if said location is in harmony with the public interest and welfare of the community and shall consider among other things the following factors:
1. The convenience of police regulations.
2. Public health and sanitation.
3. Proximity to other licensed businesses.
4. Proximity to residential property, schools, churches, funeral homes, public buildings or buildings used by or for minors.
5. Any protests of neighboring property owners or occupants.
6. Zoning regulations.
7. Interference with neighboring property.
8. Suitability of premises for sale of beer, liquor or alcoholic beverages.
9. Public convenience and necessity.
8.0510 License - Granting
After the City Council has received the application as provided herein, it shall meet and consider the same. If it finds that the applicant meets the qualifications for a license and is satisfied as to the completeness and the accuracy of the information contained in the application, it may grant the license. If it finds that the applicant does not meet with the qualifications or it is not satisfied as to the completeness or accuracy of the information, it may request that the applicant supply more verified information or may reject the application.
8.0511 License - Limit to One Applicant
Not more than one license of each classification shall be issued or granted to any applicant; and each license shall be valid only for the specific premises licensed.
8.0512 License - Posting of
A license issued hereunder shall be posted in a conspicuous place in the premises for which the license has been issued.
103
8.0513 License - Transfer of
Any license under the provisions of this article shall be non-transferable and any attempt to do so shall constitute a violation of the provisions of this article.
8.0514 License Fees - Disposition of
All license fees collected under this article shall be transferable to the City Auditor and credited to the general fund of the City.
8.0515 Hours and Time of Sale - Penalty
Anyone who dispenses or permits the consumption of alcoholic beverages on a licensed premises after one o’clock a.m. on Sundays, before eight o’clock a.m. on Mondays or between the hours of one o’clock a.m. and eight o’clock a.m. on all other days of the week or who so dispenses or permits such consumption after one o’clock a.m. on Thanksgiving Day, on Christmas Day, or after six o’clock p.m. on Christmas Eve is guilty of an offense. Anyone licensed by the City Council to sell alcoholic beverages may apply to the City Council for a permit to sell alcoholic beverages under that license during the hours from twelve noon on Sundays to one o’clock a.m. on Mondays. The authority for issuing the permit rests solely with the City Council. The fee for this permit shall be set by resolution of the City Council. (Source: NDCC Section 5-02-05, 5-02-05.1) Any licensee without an annual Sunday permit wishing to dispense or permit the consumption of alcoholic beverages between the hours of twelve noon on Sunday and one o’clock a.m. on Monday may apply for a Sunday alcoholic beverage permit from the City Council. The fee for the permit is five dollars for each Sunday the licensee is allowed to sell alcoholic beverages (Source: NDCC Section 5-02-05.1)
8.0516 Licensee’s Responsibility
Every licensee is responsible for the conduct of the licensee’s place of business and is required to maintain order and sobriety and permit no disorderly conduct on the premises. Alcoholic beverages shall not be served to any intoxicated person nor shall any intoxicated person be permitted to remain upon the premises.
8.0517 Gambling Prohibited - Exceptions
No licensee hereunder shall be permitted to have or maintain on the licensed premises any gambling device, slot machine, punch board or any other machine or device of similar nature, nor shall gambling whether by cards, dice or otherwise, of any nature, be permitted upon the licensed premises. Any violation of this section shall be sufficient cause for the revocation of the license issued
104
hereunder, and such license shall be revoked upon conviction of any such violation. This section shall not apply to gambling or games of chance conducted by a licensee under the authority of a valid and subsisting permit issued by the City Council or license issued by the State of North Dakota.
8.0518 Cashing Certain Checks Prohibited
No licensee hereunder shall cash any bank check, voucher, order or document of any kind drawn by a county welfare board or any state or federal agency in payment for wages made for work done on any so-called work relief project, or for relief purposes, which by its terms authorizes or permits any person presenting such bank check, voucher, order or document to receive payment of money.
8.0519 Sales Prohibited - Persons
No licensee, his agent or employee shall sell any alcoholic beverages to a person under twenty-one (21) years of age, a habitual drunkard, an incompetent or an intoxicated person.
8.0520 Age Identification
Before selling alcoholic beverages to any person, or before determining whether any person shall remain upon the licensed premises a licensee, his agent or employee may require a statement in writing and signed by said person of such person’s age. Any person who makes a false statement as to his or her age, or signs a name other than his own or her own to any such statement, shall be guilty of a violation of this article.
8.0521 Street Sales Prohibited
The sale or consumption of alcoholic beverages upon or across any street, alley or public way is prohibited unless specifically allowed by the City Council for special events.
8.0522 Premises, Equipment of
Premises licensed hereunder for on-sale alcoholic beverages shall be equipped with tables, chairs, booths and stools in a sufficient number to reasonably accommodate the patrons.
8.0523 Closed or Screened Areas
No premises licensed for on-sale of alcoholic beverages shall contain any side rooms, closed booths or other screened enclosures nor shall any screen, partition, curtain, blind or obstruction of any kind prevent a clear view at all times
105
of all parts of the interior of the premises licensed. All booths located in such premises shall open directly into the main part of said premises and shall be accessible from the aisles therein.
8.0524 Purchase from Licensed Wholesaler
No licensee hereunder shall purchase, have or possess any alcoholic beverages other than those purchased from a wholesaler duly licensed by the State of North Dakota pursuant to the provisions of NDCC Title 5. Each licensee hereunder shall keep on file all invoices covering purchases by him of such alcoholic beverages showing the name and license number of the wholesaler. Such records shall be retained in the possession of the licensee and shall be at all times open to inspection by any police officer or peace officer of the State of North Dakota.
8.0525 Toilets Required
Premises where an on-sale license is granted must be equipped with adequate and sufficient lavatories and toilets, separately maintained for men and women, and kept in a clean and sanitary condition. The on-sale license may be revoked when the foregoing requirements, or any other health ordinance or regulation, are not at all times strictly observed.
8.0526 Deliveries - Off Licensed Premises
1. It shall be unlawful for any person, firm or corporation engaged in the retail sale of liquor, beer or alcoholic beverages to make, or cause to be made any deliveries outside of the licensed place of business of beer, liquor or other alcoholic beverages to any purchaser or prospective purchaser.
2. It shall be unlawful for any person, firm or corporation to deliver by foot, carrier or motor carrier, any beer, liquor or alcoholic beverage to any person within the city limits provided however, that this section shall not apply to deliveries made by a licensed wholesaler dealer to a licensed retail dealer.
8.0527 Termination or Revocation of Licenses
1. Licenses issued pursuant to this article shall be deemed cancelled and revoked and terminated upon the happening of any one or more of the following contingencies:
a. The death of the licensee unless upon application to the City Council by personal representative of the decedent, the City
106
Council shall consent to the carrying on of the business by the personal representative.
b. The licensee ceases business at the location licensed, unless a new location has been approved.
c. The licensee is adjudged bankrupt.
d. The licensee is convicted of the violation of any provision of this article, or of the laws of the State of North Dakota pertaining to alcoholic beverages or of a felony under the laws of the United States, the State of North Dakota or any other state.
e. The licensee ceases to possess the qualifications required of an applicant for a license as set out in this article.
f. The license or permit of the licensee from the State of North Dakota to sell alcoholic beverages at the location licensed has been terminated or been revoked.
g. The licensee ceases to be a legal bona fide resident and citizen of the State of North Dakota.
2. Licenses issued pursuant to this ordinance may, in the discretion of the City Council, be either revoked or suspended for such period of time as deemed appropriate, upon the following grounds:
a. When the licensee has been convicted of violating any of the provisions of this article.
b. When the business of the licensee at the location licensed shall be conducted in violation of health or sanitary regulations or other ordinances of the City.
c. When the licensee, if an individual, or one of the partners, if the licensee is a partnership, or one of the officers or the manager if the licensee is a corporation, be convicted of disorderly conduct, or, if an appeal is taken from such conviction, when such conviction is sustained by the higher court.
3. Such causes as are hereinbefore detailed shall not be deemed to be exclusive and such license may also be cancelled and revoked or suspended at any time by the City Council for any cause deemed by the City Council to be sufficient cause and justified by reason of public health or public morals. Such termination shall be subject only to review by the courts of the State of North Dakota.
107
4. When any license is terminated or revoked for cause, or the licensee voluntarily ceases his business, no portion of the license fee previously paid shall be returned to the licensee or to anyone claiming under or through him.
8.0528 Penalties
Any person, firm, corporation, limited liability company, or association violating any of the provisions of this article shall upon conviction thereof, be subject to a fine of not to exceed five hundred dollars ($500.00), and/or imprisonment of not to exceed thirty (30) days; and, in addition, all rights and privileges given by any license granted under the terms of this article may be terminated or revoked in accordance with section 8.0527 of this article.
ARTICLE 6 - Shows, Carnivals and Circuses
8.0601 License Required
No person, firm, association or corporation or limited liability company shall exhibit or cause to be exhibited or assist in exhibiting any natural or artificial curiosity or conduct a circus, menagerie, tent show, carnival or carnival show, continuous theatrical performance, shooting gallery or other like exhibition without first obtaining license from the City.
8.0602 Fees for
The fees to secure license to conduct the exhibitions mentioned in the foregoing section shall be as follows:
Any carnival, per day……$15.00
Any circus, per day……...$15.00
In addition to the above fees, any carnival or circus granted a license shall deposit with the City Auditor cash bond in the amount of Two hundred dollars ($200.00) guaranteeing that the premises upon which such carnival or circus is located shall be cleaned after the showing of such carnival or circus to the satisfaction of the Street Commissioner upon certification of the Street Commissioner to the Auditor that the same has been done said cash deposit shall be returned to the licensee. An additional fee in an amount up to Five hundred dollars ($500.00), to be fixed by the City Council, may be required to be paid at the time of obtaining the license to provide for additional fire and police protection in connection with the showing of such carnival or circus.
108
ARTICLE 7 - Validity
8.0701 Validity
If any section, part, article or provision of this chapter or the application thereof to any person, firm, corporation, limited liability company, or association, or to any circumstances, shall be held to be invalid for any cause whatsoever, the remainder of this ordinance or the application to persons, firms, corporations, companies or circumstances other than those as to which it is held to be invalid, shall not be affected thereby, and shall remain in full force and effect as though no part thereof had been declared to be invalid.
ARTICLE 8 - Penalty
8.0801 Penalty
Any person, firm, corporation or association violating any of the terms, articles or provisions of this chapter, for which a specific penalty is not prescribed, shall upon conviction thereof, be punished by a fine not to exceed five hundred dollars ($500.00), and/or imprisonment not to exceed thirty (30) days. The court may, in addition thereto, revoke the permit of such violator, or terminate or revoke all rights and privileges given by any license granted under the terms of this chapter. Each day or part thereof that a person shall be in violation of the provisions of this chapter shall be considered a separate violation thereof.
109
CHAPTER NINE
TRAFFIC
ARTICLE 1 - Definitions
9.0101 Definitions
ARTICLE 2 - Traffic Administration
9.0201 Duty of Police Department
9.0202 Records of Traffic Violations
9.0203 Police Department to Investigate Accidents
ARTICLE 3 - Enforcement and Obedience to Traffic Regulations
9.0301 Authority of Police and Fire Department Officials
9.0302 Obedience to Traffic Ordinances
9.0303 Obedience to Police Officers or Firemen
9.0304 Certain Non-motorized Traffic to Obey Traffic Regulations
9.0305 Operation of Vehicles on Approach of Authorized Emergency Vehicles
9.0306 Written Report of Accident
ARTICLE 4 - Traffic Control Devices
9.0401 Authority to Install
9.0402 Specifications for
9.0403 Obedience to Traffic Control Devices
9.0404 Unauthorized Signs
9.0405 Interference with Official Traffic Control Device or Sign
9.0406 Designation of Walks, Lanes, Etc.
ARTICLE 5 - Speed Regulations and Care Required
9.0501 Basic Rules - Penalty for Violation
9.0502 Speed Limitations
9.0503 When Local Authorities May or Shall Alter Maximum Speed - Limits - Signs Posted
9.0504 Speed Limitations Inapplicable to Whom - Liability of Exempt Driver for Reckless Driving
9.0505 Regulations of Speed by Traffic Signals
9.0506 Exhibition Driving and Drag Racing - Definitions - Penalty
9.0507 Radar Evidence in Speed Violations
9.0508 Care Required in Operating Vehicle
110
ARTICLE 6 - Turning Movements
9.0601 Limitations on Turning Around
9.0602 Signals by Hand and Arm or Signal Lamps
ARTICLE 7 - Special Stops
9.0701 Signs
9.0702 Stop Signs and Yield Signs
9.0703 Emerging from Alley or Driveway
ARTICLE 8 - Operators
9.0801 Operators - Who Prohibited
ARTICLE 9 - Miscellaneous Driving Rules
9.0901 When Traffic Obstructed
9.0902 Driving Through Funeral or Other Procession
9.0903 Drivers in a Procession
9.0904 Funeral Processions to be Identified
9.0905 When Permits Required for Parades and Processions
9.0906 Drive on Right Side of Roadway - Exceptions
9.0907 Passing Vehicles Proceeding in Opposite Direction
9.0908 When Overtaking on the Right is Permitted
9.0909 Limitations on Overtaking on the Left
9.0910 Further Limitations on Driving on Left of Center of Roadway
9.0911 No-Passing Zones
9.0912 Following Too Closely
9.0913 Vehicle Entering Roadway
9.0914 Vehicle Approaching or Entering Intersection
9.0915 Overtaking and Passing Schoolbus
9.0916 Unattended Motor Vehicle
9.0917 Limitations on Backing
9.0918 Obstruction to Driver’s View or Driving Mechanism
9.0919 Following Fire Apparatus Prohibited
9.0920 Crossing Fire Hose
9.0921 Garbage, Glass, Etc. on Highways Prohibited
9.0922 Permitting Unauthorized Minor to Drive
9.0923 Permitting Unauthorized Person to Drive
ARTICLE 10 - Pedestrians’ Rights and Duties
9.1001 Pedestrian Obedience to Traffic Control Devices and Traffic Regulations
9.1002 Pedestrians’ Right-of-Way in Crosswalks
111
9.1003 Crossing at Other than Crosswalks
9.1004 Drivers to Exercise Due Care
9.1005 Pedestrians to Use Right Half of Crosswalks
9.1006 Pedestrians on Roadways
9.1007 Pedestrians’ Right-of-Way on Sidewalks
9.1008 Pedestrians Yield to Authorized Emergency Vehicles
9.1009 Blind Pedestrians’ Right-of-Way
ARTICLE 11 - Regulations for Motorcycles
9.1101 Traffic Laws Apply to Persons Operating Motorcycles or Motorized Bicycles
9.1102 Riding on Motorcycles
9.1103 Operating Motorcycles on Roadways Laned for Traffic
9.1104 Clinging to Other Vehicles
9.1105 Footrests
9.1106 Equipment for Motorcycle Riders
9.1107 Other Applicable Laws
ARTICLE 12 - Regulations for Bicycles
9.1201 Effect of Regulations
9.1202 Traffic Ordinances Apply to Persons Riding Bicycles
9.1203 Riding on Sidewalks
9.1204 Clinging to Vehicles
9.1205 Lamps and Other Equipment on Bicycles
ARTICLE 13 - Angle Parking
9.1301 Angle Parking
9.1302 Close to Curb
9.1303 Method of Parking - Penalty
ARTICLE 14 - Stopping, Standing or Parking Prohibited in Specific Places
9.1401 Parking Prohibited - All Times
9.1402 Stopping, Standing or Parking Outside of Business or Residence Districts
9.1403 Officers Authorized to Remove Illegally Stopped Vehicles
9.1404 Stopping, Standing or Parking Prohibited in Specified Places
9.1405 Additional Parking Regulations
9.1406 Stopping - Parking - Congested - Hazardous Places
9.1407 Stopping - Parking - In Alleys
9.1408 Parking Adjacent to Schools
9.1409 Stopping - Parking - Over 48 Hours
9.1410 Parking Privileges for Mobility-Impaired - Certificate - Revocation
112
ARTICLE 15 - Reserved Parking Areas
9.1501 Reserved Parking Areas
ARTICLE 16 - Time Limit Parking Zones
9.1601 Time Limit Parking Zones
ARTICLE 17 - Equipment of Vehicles
9.1701 Windshield - Must be Unobstructed and Equipped with Wipers - Tinted Windows
9.1702 Child Restraint Devices - Evidence
9.1703 Use of Safety Belts - Enforcement
9.1704 Drawbar or Connection Between Vehicles - Precautions Required
9.1705 Modification of Motor Vehicle
9.1706 Scope and Effect of Equipment Requirements - Penalty
ARTICLE 18 - Lighted Lamps Required
9.1801 When Lighted Lamps are Required
ARTICLE 19 - Regulating the Kinds and Classes of Traffic on Certain Roads
9.1901 Load Restrictions Upon Vehicles Using Certain Roadways
9.1902 Commercial Vehicles Prohibited from Using Certain Streets
9.1903 Size Restrictions Upon Vehicles Using Certain Highways
9.1904 Restrictions Upon Use of Streets by Certain Vehicles
ARTICLE 20 - Criminal Traffic Violations
9.2001 Operation of Snowmobiles
9.2002 Rules for Operation of Snowmobiles
9.2003 Operation of Motor Vehicle, Tractor or Other Vehicle Prohibited on Flood Protective Works - Exception - Penalty
9.2004 Driving Without a License
9.2005 License to be Carried and Exhibited on Demand
9.2006 Penalty
ARTICLE 21 - Disposition of Traffic Offenses
9.2101 Halting Person for Violating Traffic Regulations - Duty of Officer Halting
9.2102 Hearing - Time - Promise of Defendant to Appear - Failure to Appear - Penalty
113
9.2103 Offenses Under Which Person Halted May Not be Entitled to Release Upon Promise to Appear
9.2104 Traffic Violations Non-criminal - Exceptions - Procedures
9.2105 Failure to Appear, Pay Statutory Fee, Post Bond - Procedure - Penalty
9.2106 Amount of Statutory Fees
9.2107 “Nonmoving Violation” Defined
9.2108 “Moving Violation” Defined
9.2109 General Penalty for Violation of Chapter
9.2110 Notification of Parents or Guardians of Juvenile Traffic Offenders
ARTICLE 22 - Sections not Adopted
ARTICLE 23 - Filing of Ordinance
ARTICLE 24 - Adoption of Amendments by Reference
ARTICLE 25 - Severability Clause
ARTICLE 26 - Penalties
114
CHAPTER NINE
TRAFFIC
ARTICLE 1 – Definitions
9.0101 Definitions
Words and phrases used in this chapter shall have the meaning and be defined as provided in NDCC Title 39. NDCC Section 39-01-01 and all subsequent amendments thereto shall be and are hereby incorporated by reference in this ordinance.
ARTICLE 2 – Traffic Administration
9.0201 Duty of Police Department
It shall be the duty of the police department to enforce the street traffic regulations of this City and all of the state vehicle laws, to make arrests for traffic violations, to investigate accidents and to cooperate with the city traffic engineer and other officers of the City in the administration of the traffic laws and in developing ways and means to improve traffic conditions, and to enforce the traffic ordinances of this City.
9.0202 Records of Traffic Violations
1. The police department shall keep a record of all violations of the traffic ordinances of this City or of the state vehicle laws of which any person has been charged, together with a record of the final disposition of all such alleged offenses. Such record shall be so maintained as to show all types of violations and the total of each. Said record shall accumulate during at least a five-year period and from that time on the record shall be maintained complete for at least the most recent five-year period.
2. All forms for records of violations and notices of violations shall be serially numbered. For each month and year a written record shall be kept available to the public showing the disposal of each such form.
3. All such records and reports shall be public record.
115
9.0203 Police Department to Investigate Accidents
It shall be the duty of the police department to investigate traffic accidents in the City, to arrest and to assist in the prosecution of those persons charged with violations of law causing or contributing to such accidents.
Every law enforcement officer, who in the regular course of duty investigates a motor vehicle accident required to be reported as provided in NDCC Section 39-08-09 either at the time and at the scene of the accident or thereafter by interviewing the participants, or witnesses, shall make and forward promptly a written report of such accident to the Director of the North Dakota Department of Transportation.
ARTICLE 3 – Enforcement and Obedience to Traffic Regulations
9.0301 Authority of Police and Fire Department Officials
1. It shall be the duty of the officers of the police department and such officers as are assigned by the Chief of Police to enforce all traffic laws of this City and the State of North Dakota.
2. Officers of the police department and such officers as are assigned by the Chief of Police are hereby authorized to direct all traffic by voice, hand or signal in conformance with traffic laws, provided that, in the event of a fire or other emergency or to expedite traffic or to safeguard pedestrians, officers of the police department may direct traffic as conditions may require notwithstanding the provisions of the traffic laws.
3. Officers of the Fire Department, when at the scene of a fire, may direct or assist the police in directing traffic thereat or in the immediate vicinity.
9.0302 Obedience to Traffic Ordinances
It shall be unlawful for any person to do any act forbidden or fail to perform any act required by the provisions of this Chapter, and upon conviction of a violation of any of the provisions of this Chapter every person, firm or corporation shall be punished as provided in Article 26 of this Chapter.
9.0303 Obedience to Police Officers or Firemen
No person shall willfully refuse to comply with any lawful order or direction of any police officer or fireman invested by law with authority to direct, control, or regulate traffic.
116
9.0304 Certain Non-motorized Traffic to Obey Traffic Regulations
1. Every person propelling any pushcart upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this ordinance and by the rules of the road portion of the state vehicle code, except those provisions which by their very nature can have no application.
2. Every person riding a bicycle or an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this ordinance, except those provisions of this ordinance which by their very nature can have no application.
9.0305 Operation of Vehicles on Approach of Authorized Emergency Vehicles
The provisions of NDCC Section 39-10-26 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon the immediate approach of an authorized emergency vehicle displaying a visible flashing, revolving, or rotating blue, white, or red light, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb or the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
2. Whenever an emergency vehicle is parked or stopped at the scene of an emergency and is displaying a flashing, revolving, or rotating blue, white, or red light, approaching traffic shall move to the right-hand edge or curb of the roadway and shall stop, but once having stopped, traffic may proceed past the scene at its own risk when the roadway is clear, except when otherwise directed by a police officer.
3. This section shall not operate to relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highways.
9.0306 Written Report of Accident
1. Officer to report. Every law enforcement officer, who in the regular course of duty investigates a motor vehicle accident required to be reported as provided in NDCC Section 39-08-09 either at the time
117
and at the scene of the accident or thereafter by interviewing the participants, or witnesses, shall make and promptly forward to the director of the Department of Transportation a report of the accident in a format prescribed by the director. (Source: NDCC Section 39-08-10)
2. Garages to report. The person in charge of any garage or repair shop to which is brought any motor vehicle which shows evidence of having been involved in a reportable accident as provided in NDCC Section 39-08-09 or of being struck by any bullet, shall report or cause a report to be made to a police officer within twenty-four (24) hours after such motor vehicle is received, and before any repairs are made to such vehicle, giving the registration number and the name and address of the owner, operator, or person in control of such vehicle with a description of the location and type of damage to the vehicle, or any missing parts, if the vehicle does not have a sticker on a window thereof issued by a police officer, sheriff or highway patrolman bearing information to show that the accident in which the vehicle was involved had been investigated. The police officer investigating any reportable accident shall attach a sticker to the window of any damaged vehicle showing that the accident in which such vehicle was involved has been investigated. If the vehicle does bear such a sticker the garage or repair shop need not make the report this section requires and may begin repairs immediately. After repairs have been made and before the vehicle is released, the sticker provided herein shall be removed. (Source: NDCC Section 39-07-12)
3. Wrecker and towing services to report. The person in charge of the operator of any commercial towing or wrecker service which causes any motor vehicle to be transported to a private residence or business other than a garage or repair shop which show evidence of having been involved in a reportable accident as provided in NDCC Section 39-08-09 or of being struck by any bullet shall report or cause a report to be made to a police officer within twenty-four hours after such motor vehicle is transported. The report must give the registration number, and the name and address of the owner, operator, or person in control of such vehicle with a description of the location and type of damage to the vehicle, or any missing parts, along with the location such vehicle was transported to, if the vehicle does not have a sticker on a window thereof issued by a police officer, sheriff, or highway patrolman, bearing information to show that the accident in which the vehicle was involved has been investigated. If the vehicle does bear such a sticker the towing or wrecker service need not make the report this section requires. (Source: NDCC Section 39-07-13)
118
ARTICLE 4 – Traffic Control Devices
9.0401 Authority to Install
The city engineer or any person authorized by the City Council shall place and maintain traffic-control signs, signals, and devices when and as required under the traffic ordinances of the City to make effective the provisions of said ordinances, and may place and maintain such additional traffic-control devices as directed by the City, as the City may deem necessary to regulate traffic under the traffic ordinances of this City or under state law, or to guide or warn traffic.
9.0402 Specifications for
All traffic-control signs, signals, and devices shall conform to the specifications approved by the director of the North Dakota Department of Transportation pursuant to NDCC Section 39-13-06. All signs and signals required hereunder for a particular purpose shall so far as practicable be uniform as to type and location throughout the City. All traffic-control devices so erected and not inconsistent with the provisions of state law or this article shall be official traffic-control devices.
9.0403 Obedience to Traffic-Control Devices
The provisions of NDCC Section 39-10-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter.
2. No provision of this chapter for which traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a state statute does not state that devices are required, such statute shall be effective even though no devices are erected or in place.
3. Whenever official traffic-control devices are placed in position approximately conforming to the requirements of state law, such devices shall be presumed to have been so placed by the official act
119
or direction of lawful authority unless the contrary shall be established by competent evidence.
9.0404 Unauthorized Signs
The provisions of NDCC Section 39-10-07.2 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person shall place, maintain, or display upon or in view of any highway, any unauthorized sign, signal, marking, or device which purports to be or is an imitation of or resembles an official traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of an official traffic-control sign, marking, or device.
2. No person shall place or maintain nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising.
3. This section shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs.
4. Every such prohibited sign, signal, or marking is hereby declared to be a public nuisance and the City is hereby empowered to remove the same or cause it to be removed without notice when located on highway or roadway right of way.
5. No person shall place, maintain, or display upon or within the right of way of any highway any sign, post, pole, mailbox, or signal which has a red lamp or red reflector visible to traffic. The provisions of this subsection shall not apply to official traffic devices, lamps, or reflectors on motor vehicles or bicycles, or railroad signals or signs.
9.0405 Interference with Official Traffic Control Device or Sign
The provisions of NDCC Section 39-10-07.3 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person shall, without lawful authority, attempt to or in fact alter, deface, injure, knock down, or remove any official traffic-control device or any railroad sign or signal or any inscription, shield, or insignia thereon, or any other part thereof.
120
9.0406 Designation of Walks, Lanes, etc.
The city engineer or any person authorized by the City Council shall:
1. Designate and maintain, by appropriate devices, marks or lines upon the surface of the roadway, crosswalks at intersections where there is particular danger to pedestrians crossing the roadway, and at such other places as directed by the City Council.
2. Establish safety zones of such kind and character and at such places as may be deemed necessary for the protection of pedestrians as determined by the City Council.
3. Mark traffic lanes upon the roadway of any street or highway where a regular alignment of traffic is necessary. Where such traffic lanes have been marked, it shall be unlawful for the operator of any vehicle to fail or refuse to keep such vehicle within the boundaries of any such lane except when lawfully passing another vehicle or preparatory to making a lawful turning movement or performing other lawful traffic movements.
ARTICLE 5 – Speed Regulations and Care Required
9.0501 Basic Rules – Penalty for Violation
The provisions of NDCC Section 39-09-01 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. Any person who shall drive a vehicle upon a highway or private or public property open to the public for the operation or motor vehicles without heed to the requirements or restrictions of this section shall have committed careless driving, and shall be assessed a fee of Thirty and No/100 Dollars ($30.00).
Any person who, by reason of careless driving as herein defined, causes and inflicts injury upon the person of an operator of snow removal equipment engaged in snow removal operations or causes damage in excess of one
121
thousand dollars to snow removal equipment engaged in snow removal is guilty of an infraction.
As used in this section, “snow removal equipment” means a vehicle that is operated by a person employed by or on behalf of an authority in charge of the maintenance of the highway to perform winter maintenance snow and ice removal, including plowing, hauling away, salting, and sanding.
9.0502 Speed Limitations
The provisions of NDCC Section 39-09-02 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Subject to the provisions of 9.0501 and except in those instances where a lower speed is specified in this chapter, it presumably shall be lawful for the driver of a vehicle to drive the same at a speed not exceeding:
a. Twenty (20) miles an hour when passing a school during school recess or while children are going to or leaving school during opening or closing hours;
b. Twenty (20) miles an hour when approaching within fifty (50) feet and in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view is deemed to be obstructed when at any time during the last fifty (50) feet of the driver’s approach to such intersection, the driver does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred (200) feet from such intersection;
c. Twenty (20) miles an hour when the driver’s view of the highway ahead is obstructed within a distance of one hundred (100) feet;
d. Twenty-five (25) miles an hour on any highway in a business district or in a residence district or in a public park, unless a different speed limit is designated and posted by local authorities; and
e. Twenty-five (25) miles an hour under other circumstances, unless otherwise permitted, restricted, or required by conditions.
2. The Director of the North Dakota Department of Transportation may designate and post special areas of state highways where lower speed limits shall apply.
122
3. Except as provided by law, it is unlawful for any person to drive a vehicle upon a highway at a speed that is unsafe or at a speed exceeding the speed limit prescribed by law or established pursuant to law.
4. In charging a violation of the provisions of this section, the complaint must specify the speed at which the defendant is alleged to have driven and the speed which this section prescribes shall be prima facie lawful at the time and place of the alleged offense.
9.0503 When Local Authorities May or Shall Alter Maximum Speed – Limits – Signs Posted
The provisions of NDCC Section 39-09-03 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Whenever the City, on the basis of an engineering and traffic investigation, determines that the maximum speed permitted under this title is greater or less than what is reasonable and safe under the conditions found to exist upon a highway or part of a highway, the City may determine and declare a reasonable and safe maximum limit thereon which:
a. Decreases the limit at intersections;
b. Increases the limit within an urban district but not to more than thirty (30) miles per hour; or
c. Decreases the limit outside an urban district.
2. The City shall determine the proper maximum speed for arterial streets and shall declare a reasonable and safe maximum limit thereon which may be greater or less than the minimum speed permitted under this chapter for an urban district.
3. Any alteration of speed limits on state highways or extensions thereof in the municipality shall not be effective until such alteration has been approved by the Director of the North Dakota Department of Transportation.
123
9.0504 Speed Limitations Inapplicable to Whom – Liability of Exempt Driver for Reckless Driving
The provisions of NDCC Section 39-09-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The speed limitations provided for in this article shall not apply to Class A authorized emergency vehicles. The exceptions provided for in this section shall not protect the driver of any such vehicle from the consequences of the reckless disregard of the safety of others.
9.0505 Regulations of Speed by Traffic Signals
The City traffic engineer or authorized person may regulate the timing of traffic signals so as to permit the movement of traffic in an orderly and safe manner at speeds slightly at variance from the speeds otherwise applicable within the district or at intersections and shall erect appropriate signs giving notice thereof.
9.0506 Exhibition Driving and Drag Racing – Definitions – Penalty
The provisions of NDCC Section 39-08-03.1 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person shall engage in exhibition driving of any vehicle on a highway, street, alley, sidewalk, or any public or private parking lot or area, nor shall any person engage in a race, a speed competition, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration. Any person who violates this section by engaging in an act defined by subdivision b of subsection 2 must be assessed a fee of fifty dollars. Any person who violates this section by engaging in an act defined by subdivision a or c of subsection 2 must be assessed a fee of one hundred dollars.
2. As used in this section:
a. “Drag race” means the operation of two or more vehicles from a point side-by-side by accelerating rapidly in a competitive attempt to cause one vehicle to out distance the other; or the operation of one or more vehicles over a common selected course from the same point to the same point for the purpose of comparing the relative speed or powers of acceleration of such vehicle or vehicles within a certain distance or time limit.
124
b. “Exhibition driving” means driving a vehicle in a manner which disturbs the peace by creating or causing unnecessary engine noise, tire squeal, skid, or slide upon acceleration or braking; or driving and executing or attempting one or a series of unnecessarily abrupt turns.
c. “Race” means the use of one or more vehicles in an attempt to outgain, outdistance, or to arrive at a given distance ahead of another vehicle or vehicles; or the use of one or more vehicles to willfully prevent another vehicle from passing the racing vehicle or vehicles, or to test the physical stamina or endurance of the persons driving the vehicles over a long distance driving route.
3. Nothing in this section shall be construed as prohibiting drag racing, exhibition driving, or similar events when carried out in an organized manner on a track or other privately owned area specifically set aside and used solely for such purposes by drivers of motor vehicles, including snowmobiles.
9.0507 Radar Evidence in Speed Violations
The provisions of NDCC Section 39-03-15 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The speed of any motor vehicle may be checked by the use of radio microwaves or other electrical device. The results of such checks shall be accepted as prima facie evidence of the speed of such motor vehicle in any court or legal proceedings where the speed of the motor vehicle is at issue. The driver of any such motor vehicle may be arrested without a warrant under this section, provided the arresting officer is in uniform or displays the officer’s badge of authority; provided that such officer has observed the record of the device, or has received a radio message from the officer who observed the speed of the motor vehicle recorded by the radio microwaves or other electrical device.
9.0508 Care Required in Operating Vehicle
The provisions of NDCC Section 39-09-01.1 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Any person driving a vehicle upon a highway shall drive the vehicle in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances. No person may drive any vehicle upon a highway in a manner to endanger the life,
125
limb, or property of any person. The fee for a violation of this ordinance shall be not less than $10 nor more than $30.
ARTICLE 6 – Turning Movements
9.0601 Limitations on Turning Around
The provisions of NDCC Section 39-10-36 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movement can be made safely and without interfering with other traffic.
2. No vehicle shall be turned so as to proceed in the opposite direction upon any curve, or upon the approach to or near the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred (500) feet.
9.0602 Signals by Hand and Arm or Signal Lamps
The provisions of NDCC Section 39-10-39 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Any stop or turn signal when required herein must be given either by means of the hand and arm or by signal lamps, except as otherwise provided in subsection 2.
2. Any motor vehicle in use on a highway must be equipped with, and required signals must be given by, signal lamps when the distance from the center of the top of the steering post to the left outside limit of the body, cab or load of such motor vehicle exceeds twenty-four (24) inches (60.96 centimeters), or when the distance from the center of the top of the steering post to the rear limit of the body or load thereof exceeds fourteen (14) feet (4.27 meters). The latter measurement shall apply to any single vehicle and to any combination of vehicles.
ARTICLE 7 – Special Stops
9.0701 Signs
All traffic control devices shall conform to state specifications.
9.0702 Stop Signs and Yield Signs
126
The provisions of NDCC Sections 39-10-24 and 39-10-44 shall be and are hereby incorporated by reference in this ordinance.
1. Preferential right-of-way may be indicated by stop signs or yield signs.
2. Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, or if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersection roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.
3. The driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for the existing conditions and, if required for safety to stop, shall stop at a clearly marked stop sign, or, if none, before entering the crosswalk on the near side of the intersection or, if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersection roadway before entering it. After slowing or stopping, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute and immediate hazard during the time such driver is moving across or within the intersection or junction of roadways. Provided, however, that if the driver is involved in a collision with a vehicle in the intersection or junction of roadways after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right-of-way.
4. Every stop sign and every yield sign shall be erected as near as practicable to the nearest line of the crosswalk on the near side of the intersection or, if there is no crosswalk, then as near as practicable to the nearest line of the intersecting roadway.
5. Except when directed to proceed by a police officer or traffic control sign, every driver of a vehicle approaching an intersection indicated by a stop sign shall stop before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, shall stop at a clearly marked stop line, but if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersecting roadway.
127
6. The driver of a vehicle approaching a yield sign if required for safety to stop shall stop before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, at a clearly marked stop line, but if none, then at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway.
9.0703 Emerging from Alley or Driveway
The driver of a vehicle emerging from an alley, driveway, private road or building within a business or residential district shall stop such vehicle immediately prior to driving on to the sidewalk or on to the sidewalk area extending across such alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered when the driver has a view of approaching traffic thereon. The driver shall yield the right-of-way to any pedestrian as may be necessary to avoid collision and upon entering the roadway shall yield the right-of-way to all vehicles approaching on said roadway. (Source: NDCC Section 39-10-45)
ARTICLE 8 – Operators
9.0801 Operators – Who Prohibited
The driving of motor vehicles, including automobiles, motor scooters, motor cycles, taxi cabs, trucks, or delivery trucks within the city limits of this City by any person who is not legally licensed to operate such vehicles under the laws of the State of North Dakota or by any person during the period his or her license is suspended, is prohibited.
ARTICLE 9 – Miscellaneous Driving Rules
9.0901 When Traffic Obstructed
No driver shall enter an intersection or a marked crosswalk unless there is sufficient space on the other side of the intersection or crosswalk to accommodate the vehicle the driver is operating without obstructing the passage of other vehicles or pedestrians, notwithstanding any traffic control signal indication to proceed. (Source: NDCC Section 39-10-68)
9.0902 Driving Through Funeral or Other Procession
No driver of a vehicle shall drive between the vehicles comprising a funeral or other authorized procession while they are in motion and when such vehicles are conspicuously designated as required in this ordinance, except when authorized to do so by a law enforcement officer or when such vehicle is an
128
emergency vehicle giving an audible or visible signal. (Source: NDCC Section 39-10-72 (4))
9.0903 Drivers in a Procession
Each driver in a funeral or other procession shall follow the vehicle ahead as close as is practicable and safe. (Source: NDCC Section 39-10-72 (3))
9.0904 Funeral Processions to be Identified
A funeral procession composed of a procession of vehicles shall be identified as such by headlights burning in daylight hours on all vehicles in the procession. (Source: NDCC Section 39-10-72 (3))
9.0905 When Permits Required for Parades and Processions
No funeral, procession or parade containing two hundred (200) or more persons or fifty (50) or more vehicles except the Armed Forces of the United States, the military forces of this state and the forces of the police and fire departments, shall occupy, march or proceed along any street except in accordance with a permit issued by the Chief of Police and such other regulations as are set forth herein which may apply.
9.0906 Drive on Right Side of Roadway – Exceptions
The provisions of NDCC Section 39-10-08 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
a. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
b. When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
c. Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or
2. Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then
129
existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn in an intersection or into a private road or driveway.
3. Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle shall be driven to the left of the center line of the roadway, except when authorized by official traffic-control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under subdivision b of subsection 1 hereof. However, this subsection shall not be construed as prohibiting the crossing of the center line in making a left turn into or from an alley, private road, or driveway.
9.0907 Passing Vehicles Proceeding in Opposite Direction
The provisions of NDCC Section 39-10-09 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the roadway as nearly as possible.
9.0908 When Overtaking on the Right is Permitted
The provisions of NDCC Section 39-10-12 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:
a. When the vehicle overtaken is making or about to make a left turn; or
b. Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle.
2. The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. Such movement may not be made by driving off the roadway.
130
9.0909 Limitations on Overtaking on the Left
The provisions of NDCC Section 39-10-13 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No vehicle may be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to an authorized lane of travel as soon as practicable, and in the event the passing movement involves the use of a lane authorized for vehicles approaching from the opposite direction, before coming within two hundred feet of any approaching vehicle.
9.0910 Further Limitations on Driving on Left of Center of Roadway
The provisions of NDCC Section 39-10-14 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No vehicle shall be driven to the left side of the roadway under the following conditions:
a. When approaching or upon the crest of a grade or a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;
b. When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing; or
c. When the view is obstructed upon approaching within one hundred (100) feet of any bridge, viaduct or tunnel.
2. The foregoing limitations shall not apply upon a one-way roadway, nor under the conditions described in 9.0906 nor to the driver of a vehicle turning left into or from an alley, private road or driveway.
9.0911 No-Passing Zones
The provisions of NDCC Section 39-10-15 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
131
1. The Director of the North Dakota Department of Transportation and local authorities are hereby authorized to determine those portions of any highway under their respective jurisdiction where overtaking and passing or driving on the left side of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person, every driver of a vehicle shall obey the directions thereof.
2. Where signs or markings are in place to define a no-passing zone as set forth in subsection 1, no driver shall at any time drive on the left side of the roadway with such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.
3. This section does not apply under the conditions described in Section 9.0906 nor to the driver of a vehicle turning left into or from an alley, private road or driveway.
9.0912 Following Too Closely
The provisions of NDCC Section 39-10-18 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
2. The driver of any truck or motor vehicle drawing another vehicle when traveling upon a roadway outside of a business or residence district and which is following another truck or motor vehicle drawing another vehicle shall, whenever conditions permit leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this does not prevent a truck or motor vehicle drawing another vehicle from overtaking and passing any vehicle or combination of vehicles.
3. Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade whether or not towing other vehicles must be so operated as to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This provision does not apply to funeral processions.
132
9.0913 Vehicle Entering Roadway
The provisions of NDCC Section 39-10-25 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.
9.0914 Vehicle Approaching or Entering Intersection
The provisions of NDCC Section 39-10-22 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. When two vehicles approach or enter an intersection not controlled by an official traffic-control device from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. If the intersection is T-shaped and not controlled by an official traffic-control device, the driver of the vehicle on the terminating street shall yield to the vehicle on the continuing street or highway.
2. The right-of-way rule declared in this section is modified at through highways and otherwise as stated in this chapter.
9.0915 Overtaking and Passing Schoolbus
The provisions of NDCC Section 39-10-46 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. The driver of a vehicle meeting or overtaking from either direction any schoolbus stopped on the highway shall stop the vehicle before reaching the schoolbus when there is in operation on the schoolbus the flashing red lights or the stop sign on the control arm specified in NDCC Section 39-21-18, and the driver may not proceed until the schoolbus resumes motion, the driver is signaled by the schoolbus driver to proceed, or the flashing red lights and the stop sign on the control arm are no longer actuated.
2. Every schoolbus shall bear upon the front and rear thereof plainly visible signs containing the word "SCHOOLBUS" in letters not less than eight (8) inches (20.32 centimeters) in height.
133
3. The operator of a schoolbus equipped with amber caution lights may activate those lights at a distance of not less than three hundred (300) feet (91.44 meters) nor more than five hundred (500) feet (152.4 meters) from the point where school children are to be received or discharged from the bus.
4. Every schoolbus must be equipped with a stop sign on a control arm and red visual signals meeting the requirements of NDCC Section 39-21-18, which may only be actuated by the driver of the schoolbus whenever the vehicle is stopped on the highway to receive or discharge school children.
5. The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a schoolbus which is on a different roadway or when upon a controlled-access highway and the schoolbus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.
9.0916 Unattended Motor Vehicle
The provisions of NDCC Section 39-10-51 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person driving or in charge of a motor vehicle may permit it to stand unattended without first stopping the engine, effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway.
9.0917 Limitations on Backing
The provisions of NDCC Section 39-10-52 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance. The driver of a vehicle may not back the same unless such movement can be made with safety and without interfering with other traffic.
9.0918 Obstruction to Driver's View or Driving Mechanism
The provisions of NDCC Section 39-10-54 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person may drive a vehicle when it is so loaded, or when there are in the front seat such a number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or
134
as to interfere with the driver's control over the driving mechanism of the vehicle.
2. No passenger in a vehicle may ride in such position as to interfere with the driver's view ahead or to the sides, or to interfere with his control over the driving mechanism of the vehicle.
9.0919 Following Fire Apparatus Prohibited
The provisions of NDCC Section 39-10-57 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of any vehicle other than one on official business may not follow any fire apparatus traveling in response to a fire alarm closer than five hundred (500) feet or stop such vehicle within five hundred (500) feet of any fire apparatus stopped in answer to a fire alarm.
9.0920 Crossing Fire Hose
The provisions of NDCC Section 39-10-58 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No vehicle may be driven over any unprotected hose of a fire department when laid down on any street, private road or driveway to be used at any fire or alarm of fire, without the consent of the fire department official in command.
9.0921 Garbage, Glass, Etc. on Highways Prohibited
The provisions of NDCC Section 39-10-59 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. No person may throw or deposit upon any highway any glass bottle, glass, nails, tacks, wire, cans, rubbish, or any other substance likely to injure any person, animal or vehicle.
2. Any person who drops, or permits to be dropped or thrown, upon any highway any destructive or injurious material shall immediately remove the same or cause it to be removed.
3. Any person removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from such vehicle.
135
9.0922 Permitting Unauthorized Minor to Drive
No person may cause or knowingly permit the person’s child or ward under the age of eighteen (18) years to drive a motor vehicle upon any highway when such minor is not authorized under the laws of this state. (Source: NDCC Section 39-06-44)
9.0923 Permitting Unauthorized Person to Drive
No person may authorize or knowingly permit a motor vehicle owned by the person or under the person’s control to be driven upon any highway by any person who is not authorized under the laws of this state. (Source: NDCC Section 39-06-45)
ARTICLE 10 - Pedestrians' Rights and Duties
9.1001 Pedestrian Obedience to Traffic Control Devices and Traffic Regulations
The provisions of NDCC Section 39-10-27 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. A pedestrian shall obey the instructions of any official traffic control device specially applicable to him, unless otherwise directed by a police officer.
2. Pedestrians are subject to traffic-control and pedestrian-control signals as provided for in 9.0403.
9.1002 Pedestrians' Right-of-way in Crosswalks
The provisions of NDCC Section 39-10-28 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. When traffic-control signals are not in place or not in operation, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
2. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard.
136
3. Subsection 1 of this section does not apply under the conditions stated in subsection 2 of Section 9.1003.
4. Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the highway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.
9.1003 Crossing at other than Crosswalks
The provisions of NDCC Section 39-10-29 relating to the following circumstances and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
2. Between adjacent intersections at which traffic-control devices are in operation pedestrians may not cross at any place except in a marked crosswalk.
9.1004 Drivers to Exercise Due Care
The provisions of NDCC Section 39-10-30 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused, incapacitated, or intoxicated person.
9.1005 Pedestrians to Use Right Half of Crosswalks
The provisions of NDCC Section 39-10-32 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Pedestrians shall move, whenever practicable, upon the right half of crosswalks.
137
9.1006 Pedestrians on Roadways
The provisions of NDCC Section 39-10-33 relating to the following circumstances and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.
2. Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.
3. Except as otherwise provided for in this chapter, any pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway.
9.1007 Pedestrians' Right-of-Way on Sidewalks
The provisions of NDCC Section 39-10-33.1 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of a vehicle shall yield the right-of-way to any pedestrian on a sidewalk.
9.1008 Pedestrians Yield to Authorized Emergency Vehicles
The provisions of NDCC Section 39-10-33.2 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon the immediate approach of an authorized emergency vehicle making use of an audible signal by bell, siren, or exhaust whistle and displaying a visible flashing revolving, or rotating blue, white or red light, every pedestrian shall yield the right-of-way to the authorized emergency vehicle.
2. This section does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway nor from the duty to exercise due care to avoid colliding with any pedestrian.
138
9.1009 Blind Pedestrians’ Right-of-way
The provisions of NDCC Section 39-10-33.3 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The driver of a vehicle shall yield the right-of-way to any blind pedestrian carrying a clearly visible white cane or accompanied by a guide dog.
ARTICLE 11 – Regulations for Motorcycles
9.1101 Traffic Laws Apply to Persons Operating Motorcycles or Motorized Bicycles
The provisions of NDCC Section 39-10.2-01 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
9.1102 Riding on Motorcycles
The provisions of NDCC Section 39-10.2-02 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such operator may not carry any other person nor may any other person ride on a motorcycle unless such motorcycle is designed to carry more than one person, in which event a passenger may ride upon the permanent and regular seat if designed for two persons, or upon another seat firmly attached to the motorcycle at the rear or side of the operator.
2. A person shall ride upon a motorcycle only while sitting astride the seat, facing forward, with one leg on each side of the motorcycle.
3. No person may operate a motorcycle while carrying any package, bundle or other article which prevents the person from keeping both hands on the handlebars.
4. No operator may carry any person, nor may any person ride in a position that will interfere with the operation or control of the motorcycle or the view of the operator.
139
9.1103 Operating Motorcycles on Roadways Laned for Traffic
The provisions of NDCC Section 39-10.2-03 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. All motorcycles are entitled to the full use of a lane and no motor vehicle may be driven in such a manner as to deprive any motorcycle of the full use of a lane.
2. The operator of a motorcycle may not overtake and pass in the same lane occupied by the vehicle being overtaken.
3. No person may operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles.
4. Motorcycles may not be operated more than two abreast in a single lane.
5. Subsections 2 and 3 do not apply to police officers in the performance of their official duties.
9.1104 Clinging to Other Vehicles
The provisions of NDCC Section 39-10.2-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person riding upon a motorcycle may attach the person’s self or the motorcycle to any other vehicle on a roadway.
9.1105 Footrests
The provisions of NDCC Section 39-10.2-05 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Any motorcycle carrying a passenger, other than in a sidecar or enclosed cab, must be equipped with footrests for such passengers.
9.1106 Equipment for Motorcycle Riders
The provisions of NDCC Section 39-10.2-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
140
1. No person under the age of eighteen years may operate or ride upon a motorcycle unless protective headgear, which complies with standards established by the North Dakota Department of Transportation, is being worn on the head of the operator and rider, except when participating in a lawful parade. If the operator of a motorcycle is required to wear protective headgear, any passenger must also wear protective headgear regardless of the age of the passenger.
2. This section does not apply to persons riding within an enclosed cab or on a golf cart.
3. No person may operate a motorcycle if a person under the age of eighteen (18) years is a passenger upon that motorcycle and is not wearing protective headgear as provided in subsection 1.
9.1107 Other Applicable Laws
The provisions of NDCC Section 39-10.2-07 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
All of the provisions of this chapter pertaining to the disposition of traffic offenses apply to this article.
ARTICLE 12 – Regulations for Bicycles
9.1201 Effect of Regulations
1. It is a violation of this ordinance for any person to do any act forbidden or fail to perform any act required in this article. Any person who violates any of the provisions of this article may be assessed a fee not to exceed five dollars ($5.00).
2. The parent of any child and the guardian of any ward may not authorize or knowingly permit any such child or ward to violate any of the provisions of this ordinance.
3. These regulations applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles subject to those exceptions stated herein. (Source: NDCC Section 39-10.1-01)
141
9.1202 Traffic Ordinances Apply to Persons Riding Bicycles
Every person riding a bicycle upon a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this ordinance, except as to special regulations in this article and except as to those provisions of this ordinance which by their nature can have no application. (Source: NDCC Section 39-10.1-02)
9.1203 Riding on Sidewalks
1. The Chief of Police or authorized person may erect signs on any sidewalk or roadway prohibiting the riding of bicycles thereon by any person and when such signs are in place no person may disobey the same.
2. Whenever any person is riding a bicycle upon a sidewalk, such person shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.
9.1204 Clinging to Vehicles
The provisions of NDCC Section 39-10.4-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person riding upon any bicycle, coaster, roller skates, sled or toy vehicle may attach the same or the person’s self to any vehicle upon a roadway, except a sled being pulled by a snowmobile.
9.1205 Lamps and other Equipment on Bicycles
The provisions of NDCC Section 39-10.1-07 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance. Every bicycle must be equipped with a brake which will enable the operator to make the braked wheels skid on dry, level, clean pavement.
ARTICLE 13 – Angle Parking
9.1301 Angle Parking
The city engineer or other person authorized by the City Council may mark or sign streets upon which angle parking will be permitted (other than federal aid or state highways). Upon those streets which have been signed or marked for angle parking, no person may park or stand a vehicle other than at the angle to the curb or edge of the roadway indicated by such signs or markings.
9.1302 Close to Curb
142
No person may stand or park a vehicle in a street other than on the roadway and parallel with the edge of the roadway headed in the direction of lawful traffic movement and with the right hand wheels of the vehicle within eighteen (18) inches of the curb or edge of the roadway except as otherwise provided in this article.
9.1303 Method of Parking - Penalty
A violation of the provisions of this article in respect to the method of parking is punishable by a fine of not to exceed twenty-five dollars ($25.00).
ARTICLE 14 - Stopping, Standing or Parking Prohibited in Specific Places
9.1401 Parking Prohibited - All Times
When signs are erected giving notice thereof, it shall be unlawful for any person, firm or corporation to park or leave standing either attended or unattended, any motor vehicle in or upon the streets or alleys of the City.
9.1402 Stopping, Standing or Parking Outside of Business or Residence Districts
The provisions of NDCC Section 39-10-47 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway of not less than twelve (12) feet opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
2. Subsection 1 and Sections 9.1404 and 9.1405 shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.
9.1403 Officers Authorized to Remove Illegally Stopped Vehicles
143
The provisions of NDCC Section 39-10-48 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Whenever any police officer finds a vehicle standing upon a highway in violation of any of the provisions of Section 9.1402, such officer is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the paved or main-traveled part of such highway.
2. Whenever any police officer finds a vehicle unattended upon any highway, bridge or causeway, or in any tunnel where such vehicle constitute an obstruction to traffic, such officer is hereby authorized to provide for the removal of such vehicle to the nearest garage or other place of safety.
3. Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:
a. A report has been made that such vehicle has been stolen or taken without consent of its owner;
b. The person or persons in charge of such vehicle are unable to provide for its custody or removal; or
c. When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay.
9.1404 Stopping, Standing or Parking Prohibited in Specified Places
The provisions of NDCC Section 39-10-49 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
No person may stop, stand or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic-control device, in any of the following places:
1. On a sidewalk;
2. In front of a public or private driveway;
144
3. Within an intersection;
4. Within ten (10) feet of a fire hydrant;
5. On a crosswalk;
6. Within ten (10) feet of a crosswalk at an intersection;
7. Within fifteen (15) feet upon the approach to any flashing beacon, stop sign or traffic-control signal located at the side of a roadway;
8. Between a safety zone and the adjacent curb or within fifteen (15) feet of points on the curb immediately opposite the ends of a safety zone, unless the North Dakota Department of Transportation or the City indicates a different length by signs or markings;
9. Within twenty (20) feet of the driveway entrance to any fire station and on the side of a street opposite the entrance to any fire station within seventy-five (75) feet of said entrance when properly signposted;
10. Alongside or opposite any street excavation or obstruction when stopping, standing or parking would obstruct traffic;
11. On the roadway side of any vehicle stopped or parked at the edge or curb of a street;
12. Upon any bridge or other elevated structure upon a highway or within a highway tunnel; or
13. At any place where official signs prohibit stopping.
No person shall move a vehicle not lawfully under his control into any such prohibited area or away from a curb such distance as is unlawful.
9.1405 Additional Parking Regulations
The provisions of NDCC Section 39-10-50 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway must be so stopped or parked with the right-hand wheels of such vehicle parallel to and within twelve (12) inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder.
145
2. Except where otherwise provided by ordinance, every vehicle stopped or parked upon a one-way roadway must be so stopped or parked parallel to the curb or edge of the roadway, in the direction of authorized traffic movement, with its right-hand wheels within twelve (12) inches of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder, or with its left-hand wheels within twelve (12) inches of the left-hand curb or as close as practicable to the left edge of the left-hand shoulder.
3. The City may permit angle parking on any roadway, except that angle parking is not permitted on any federal-aid or state highway without first obtaining the written authorization of the director of the North Dakota Department of Transportation.
9.1406 Stopping - Parking - Congested - Hazardous Places
The city engineer or other person designated by the City Council is hereby authorized to determine and designate by proper signs, places in which the stopping, standing or parking of vehicles would create an especially hazardous condition or would cause unusual delay to traffic.
When official signs are erected at hazardous or congested places as authorized herein, no person may stop, stand or park a vehicle in any such designated place.
9.1407 Stopping - Parking - In Alleys
No person may park a vehicle within an alley, nor shall any person stop a commercial vehicle so as to leave available less than twelve (12) feet of the width thereof for free movement of vehicular traffic, nor shall any person stop in such a position as to block the driveway entrance to any abutting property.
9.1408 Parking Adjacent to Schools
1. The city traffic engineer or authorized person may erect signs indicating no parking upon either or both sides of any street adjacent to any school property when such parking would, in his opinion, interfere with traffic or create a hazardous situation.
2. When official signs are erected indicating no parking upon either side of a street adjacent to any school property as authorized herein, no person may park a vehicle in any such designated place.
9.1409 Stopping - Parking - Over 48 Hours
146
It shall be unlawful for anyone to park or leave standing on any public street or highway in the City any vehicle for a period longer than forty-eight (48) hours consecutively, provided this section shall not include any area where a shorter time is provided for parking.
9.1410 Parking Privileges for Mobility-Impaired - Certificate - Revocation
The provisions of NDCC Section 39-01-15 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
1. Any mobility-impaired person who displays prominently upon an automobile parked by that person or under that person’s direction and for that person’s use, a distinguishing certificate or insignia for mobility-impaired persons issued by the North Dakota Department of Transportation shall be entitled to courtesy in the parking of the automobile. Provided, however, that the City may prohibit parking on any street or highway for the purpose of creating a fire lane, or to provide for the accommodation of heavy traffic during morning and afternoon rush hours, and the privileges extended to such impaired persons do not apply on streets or highways where and during such times as parking is prohibited.
2. A mobility-impaired person as used in this section includes any person who uses portable oxygen; requires personal assistance or the use of crutches, a wheelchair, or a walker to walk two hundred feet without rest; is restricted by cardiac, pulmonary or vascular disease from walking two hundred feet without rest; has a forced expiratory volume of less than one liter for one second or an arterial oxygen tension of less than sixty millimeters to mercury on room air while at rest and is classified III or IV by standards for cardiac disease set by the American Heart Association; or has an orthopedic, neurological or other medical condition that makes it impossible for the person to walk two hundred feet without assistance or rest.
3. If a law enforcement officer finds that a mobility-impaired certificate or insignia is being improperly used, the officer may report to the director of the North Dakota Department of Transportation. Any person who is not mobility-impaired and who exercises the privileges granted a mobility-impaired person under subsection 1 shall be guilty of an infraction.
4. Whenever any public or private entity designates parking spaces for use by motor vehicles operated by mobility-impaired persons, those reserved spaces must be indicated by blue paint on the curb or edge of the paved portion of the street or parking lot adjacent to the space.
147
In addition to blue paint, the space reserved must be indicated by an official sign approved by the director of the North Dakota Department of Transportation. The City may enforce the provisions of this subsection in any parking lot or parking facility that is generally open to the public, whether publicly or privately owned.
5. A person may not stop, stand or park any vehicle in any designated parking space which is reserved for the mobility-impaired unless the vehicle displays a mobility-impaired identification certificate or insignia issued by the director of the North Dakota Department of Transportation. For a violation of this subsection, there will be a fee in the amount of one hundred dollars ($100.00).
ARTICLE 15 - Reserved Parking Areas
9.1501 Reserved Parking Areas
No person, firm or corporation shall, when signs are erected giving notice thereof, park or leave standing, either attended or unattended, any motor vehicle on street areas which are reserved for the following temporary uses: loading and unloading, bus parking, guest parking, taxi parking, emergency parking, no parking, police or fire use.
The Chief of Police may establish from time to time areas for loading and unloading, bus parking, guest parking, taxi parking, emergency parking, no parking or police and fire use on such public streets in such places and in such number as the chief shall determine or as the City Council may specifically designate to be of greatest benefit and convenience to the public. These areas shall be designated by appropriate signs.
ARTICLE 16 - Time Limit Parking Zones
9.1601 Time Limit Parking Zones
When signs are erected giving notice thereof, no person, firm or corporation shall park or leave standing, either attended or unattended any motor vehicle for more than the amount of time posted.
The city engineer or authorized person may establish time parking zones from time to time in such places as they determine, or as the City Council shall specifically designate, to promote the greatest benefit and convenience to the public and the best use of the street areas.
ARTICLE 17 - Equipment of Vehicles
148
9.1701 Windshield - Must be Unobstructed and Equipped with Wipers - Tinted Windows
1. Every motor vehicle shall be equipped with a windshield. No person shall drive any motor vehicle with any sign, poster or other nontransparent material upon the front windshield, side wings or side or rear windows which obstructs the driver’s clear view of the highway or any intersection highway.
2. The windshield on every motor vehicle must be equipped with a device for cleaning rain, snow or other moisture from the windshield, which shall be so constructed as to be controlled or operated by the driver of the vehicle.
3. Every windshield wiper upon a motor vehicle shall be maintained in good working order.
4. A person may not operate a motor vehicle with any object or any material displayed, affixed or applied on the front windshield or on any side window where that material alters the color or reduces the light transmittance, or reduces the clear and unobstructed view through the windshield or window. This subsection does not apply to windows behind the driver or to tinted windows or windshields in compliance with the Federal Motor Vehicle Safety Standards.
9.1702 Child Restraint Devices - Evidence
1. If a child, under four years of age, is present in any motor vehicle, that motor vehicle must be equipped with at least one (1) child restraint system for each such child. The child restraint system must meet the standards adopted by the United States Department of Transportation for those systems (49 CFR 571.213). While the motor vehicle is in motion, each such child must be properly secured in the child restraint system in accordance with the manufacturer’s instructions. If a child who is at least four and at most seventeen years of age is present in a motor vehicle, unless properly secured in an approved child restraint system, the child must be buckled in a seatbelt whenever the car is moving. Use of child restraint systems and seatbelts is not required in motor vehicles that were not equipped with seatbelts when manufactured.
2. Violation of this ordinance is not, in itself, evidence of negligence. The fact of a violation of this section is not admissible in any proceeding other than one charging the violation. (Source: NDCC Section 39-21-41.2)
149
9.1703 Use of Safety Belts - Enforcement
Subject to the limitations of this section and NDCC Section 39-21-41.5, a driver may not operate upon a highway a motor vehicle designed for carrying fewer than eleven passengers, which was originally manufactured with safety belts unless each front seat occupant is wearing a properly adjusted and fastened safety belt. This section does not apply to a child in a child restraint or seatbelt; to drivers of implements of husbandry; to operators of farm vehicles; to rural mail carriers while on duty delivering mail; to an occupant with a medical or physically disabling condition that prevents appropriate restraint in a safety belt, if a qualified physician states in a signed writing the nature of the condition and the reason restraint is inappropriate; or when all front seat safety belts are in use by other occupants. A physician who, in good faith, provides a statement that restraint would be inappropriate is not subject to civil liability.
A peace officer may not issue a citation for a violation of this section unless the officer lawfully stopped or detained the driver of the motor vehicle for another violation. (Source: NDCC Sections 39-21-41.4 and 41.5)
9.1704 Drawbar or Connection Between Vehicles - Precautions Required
The drawbar or other connection between any two vehicles, one of which is towing or drawing the other on a highway, shall be of such design, strength and construction so as to prevent the unintentional uncoupling of the vehicles. (Source: NDCC Section 39-21-44.2)
9.1705 Modification of Motor Vehicle
Except as otherwise provided in this ordinance, a person may not operate upon a public highway a motor vehicle of a type required to be registered under the laws of this state with a weight of seven thousand (7,000) pounds (3175.14 kilograms) or less with alterations or changes from the manufacturer’s original design of the suspension, steering or braking system of the motor vehicle. The weight must be computed on the basis of the unmodified and unloaded weight of the motor vehicle, and without regard to any ballast that may be placed in the vehicle. As to bumpers, motor vehicle height and permitted modifications, the following requirements also apply:
1. The motor vehicle must be equipped with front and rear bumpers.
2. The maximum body height permitted for a motor vehicle is forty-two (42) inches (106.68 centimeters). Measurement of body height is made from a level ground surface to the floor of the cargo area.
3. The maximum bumper height permitted is twenty-seven (27) inches (68.58 centimeters). Measurement of bumper height is made from a
150
level ground surface to the highest point on the bottom of the bumper.
4. The vehicle may be modified in accordance with the following:
a. Any modifying equipment must meet specialty equipment marketing association standards.
b. If tires placed on a motor vehicle have a diameter greater than that of the tires on the motor vehicle as manufactured, those tires must comply with Department of Transportation requirements.
c. The maximum outside diameter permitted for tires if forty-four (44) inches (111.76 centimeters).
d. A horizontal drop bumper may be used to comply with the bumper height requirement of subsection 3. The horizontal bumper must:
i. Be at least three (3) inches (7.62 centimeters) in vertical width;
ii. Extend the entire horizontal body width; and
iii. Be horizontal, load bearing and attached to the vehicle frame to effectively transfer impact when engaged.
e. The maximum lift permitted in the suspension system is four (4) inches (10.16 centimeters).
5. A person charged with violating this ordinance has the burden of proceeding to show that the modifications are permitted under this section.
6. Vehicles owned by law enforcement agencies, the military, fire fighting agencies and ambulances may be modified without regard to this ordinance. (Source: NDCC Section 39-21-45.1)
9.1706 Scope and Effect of Equipment Requirements - Penalty
1. It is unlawful for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which the actor knows to be in such unsafe condition as to endanger any person, or which the actor knows does not contain those parts or is not at all times equipped with lamps and other equipment in proper condition and adjustment as required in this chapter, or which the actor knows is equipped in any manner in violation of this chapter, or for any person to do any
151
act forbidden or fail to perform any act required under this ordinance. Unless otherwise specifically provided in this chapter or in NDCC Sections 39-06.1-08 or 39-06.1-09, any person who, in violation of this ordinance, drives, or any owner who causes or knowingly permits to be driven upon a highway, any vehicle or combination of vehicles which that person knows is unsafe or improperly equipped is guilty of an infraction.
2. Nothing contained in this ordinance may be construed to prohibit the use of additional parts and accessories on any vehicle not inconsistent with the provisions of this chapter.
3. The provisions of this ordinance with respect to equipment on vehicles do not apply to implements of husbandry, road machinery, road rollers or farm tractors except as specifically made applicable.
4. The provisions of this ordinance with respect to equipment required on vehicles do not apply to motorcycles or motor-driven cycles, except as specifically made applicable.
5. The provisions of this ordinance do not apply to vehicles moved solely by human power, except as specifically made applicable. (Source: NDCC Section 39-21-46)
ARTICLE 18 - Lighted Lamps Required
9.1801 When Lighted Lamps are Required
Subject to exceptions with respect to parked vehicles, every vehicle upon a highway within this state must display lighted lamps and illuminating devices as required in this chapter for different classes of vehicles as follows:
1. At any time from sunset to sunrise, and every farm tractor upon a highway within this state at any time from a half hour after sunset to a half hour before sunrise;
2. At any time when it is raining, snowing, sleeting or hailing or during other adverse driving conditions and these conditions do not render a person or vehicle on the highway clearly discernible at a distance of one thousand (1000) feet (304.8 meters) ahead; or
3. At any other time when visibility is impaired by weather, smoke, fog or other conditions or when there is insufficient light to render a person or vehicle on the highway clearly discernible at a distance of one thousand (1000) feet (304.8 meters) ahead.
152
Stoplights, turn signals and other signaling devices must be lighted as prescribed for the use of such devices. NDCC Section 39-21-01)
ARTICLE 19 - Regulating the Kinds and Classes of Traffic on Certain Roads
9.1901 Load Restrictions Upon Vehicles Using Certain Roadways
When signs are erected giving notice thereof, no person may operate any vehicle with a gross weight in excess of the maximum indicated weight at any time upon any street or part of a street so designated.
9.1902 Commercial Vehicles Prohibited from Using Certain Streets
When signs are erected giving notice thereof, no person may operate any commercial vehicle exceeding the maximum indicated gross weight at any time upon any street or part of a street so designated except that such vehicles may be operated thereon for the purpose of delivering or picking up materials or merchandise and then only by entering such street at the intersection nearest the designation of the vehicle and proceeding thereon no farther than the nearest intersection thereafter.
9.1903 Size Restrictions Upon Vehicles Using Certain Highways
When signs are erected giving notice thereof, no person may operate any vehicle exceeding the dimensions specified by such sign or signs at any time upon any street or part of a street so designated.
9.1904 Restrictions Upon Use of Streets by Certain Vehicles
1. The city traffic engineer or authorized person may determine and designate those heavily traveled streets upon which shall be prohibited the use of the roadway by motor-driven cycles, bicycles, horse-drawn vehicles or other non-motorized traffic and shall erect appropriate signs giving notice thereof.
2. When signs are so erected giving notice thereof, no person may disobey the restrictions stated on such signs.
ARTICLE 20 - Criminal Traffic Violations
9.2001 Operation of Snowmobiles
1. Definitions:
For the purpose of this article, the following definitions are hereby adopted:
153
1. “Operate” means to ride in or on and control the operation of a snowmobile.
2. “Operator” means every person who operates or is in actual physical control of a snowmobile.
3. “Owner” means a person, other than a lienholder, having the property in or title to a snowmobile entitled to the use or possession thereof.
4. “Registrar” or “Director” means the director of the Department of Transportation of this state as provided in NDCC Section 24-02-01.3.
5. “Roadway” means that portion of a highway improved, designed or ordinarily used for vehicular travel.
6. “Snowmobile” means a self-propelled vehicle designed for travel on snow, ice or a natural terrain and steered by skis or runners. (Source: NDCC Section 39-24-01)
9.2002 Rules for Operation of Snowmobiles
1. No person may operate a snowmobile upon the roadway, shoulder or inside bank or slope of any road, street or highway in this City except as provided pursuant to this article. No snowmobile shall be operated at any time within the right of way of any interstate highway except for emergency purposes.
2. A snowmobile may make a direct crossing of a street or highway provided:
a. The crossing is made at an angle of approximately ninety (90) degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
b. The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
c. The driver yields the right of way to all oncoming traffic which constitutes an immediate hazard; and
d. In crossing a divided highway, the crossing is made only at an intersection of such highway with another public street or highway.
3. No snowmobile may be operated unless it is equipped with at least one (1) headlamp, one tail lamp and brakes, all in working order,
154
which conform to standards prescribed by rule of the director pursuant to the authority vested in the director by state law.
4. The emergency conditions under which a snowmobile may be operated other than as provided by this article shall be such as to render the use of an automobile impractical under such conditions at such period of time and location.
5. It is unlawful for any person to drive or operate any snowmobile in the following ways which are declared to be unsafe and a public nuisance:
a. At a rate of speed greater than reasonable or proper under all the surrounding circumstances.
b. In a careless, reckless or negligent manner so as to endanger the person or property of another or to cause injury or damage to such person or property.
c. While under the influence of intoxicating liquor or a drug as defined in NDCC Section 39-24.1-01, or a combination thereof.
d. Without a lighted headlamp and tail lamp when required for safety.
e. In any tree nursery or planting in a manner which damages or destroys growing stock.
f. Without a manufacturer-installed or equivalent muffler in good working order and connected to the snowmobile exhaust system.
g. Upon any private land when the private land is posted by the owner or tenant prohibiting trespassing. The name of the person posting the land must appear on each sign in legible characters. The posted signs shall be readable from the outside of the land and shall be placed conspicuously at a distance of not more than eight hundred eighty (880) yards (804.68 meters) apart, provided further that as to land entirely enclosed by a fence or other enclosure, posting of signs at or on all gates through the fence or enclosure constitutes posting of all the enclosed lands.
6. It is unlawful for any person to operate a snowmobile pursuant to NDCC Chapter 39-24 without having in possession a valid driver’s license or permit, except as provided by NDCC Section 39-24-09.1.
155
7. When snowmobiles are operated within the right of way of any road, street or highway of this state pursuant to this chapter, during times or conditions that warrant the use of lights, such snowmobiles shall travel in the same direction as the direction of motor vehicles traveling on the side of the roadway immediately adjacent to the side of the right of way traveled by the snowmobile.
8. It is unlawful for any person to operate a snowmobile within a highway right of way as defined in NDCC Section 24-01-01.1(7) between April 1 and November 1 of any year.
9. No snowmobile may be operated at any time within the right of way of any highway within this state while towing a sled, skid or other vehicle, unless the sled, skid or other vehicle is connected to the snowmobile by a hinged swivel and secure hitch.
10. No person under the age of eighteen years may operate, ride or otherwise be propelled on a snowmobile unless the person wears a safety helmet meeting United States department of transportation standards.
9.2003 Operation of Motor Vehicle, Tractor or Other Vehicle Prohibited on Flood Protective Works - Exception - Penalty
1. Unless authorized by the authority in charge thereof, no person shall operate a motor vehicle, tractor or other vehicle upon or across any flood protective works, including but not limited to, any dike or flood protective works constructed by a state or federal agency or by any municipality or local subdivision of the state.
2. Any person violating the provisions of this section shall be liable to any person suffering injury as a result of the violation; and in addition, shall be guilty of a class B misdemeanor. (Source: NDCC Section 30-10-65)
9.2004 Driving Without a License
No person shall drive any motor vehicle upon a highway in this City unless such person has a valid license as an operator, or is expressly exempted from licensing requirements, by the laws of this state.
9.2005 License to be Carried and Exhibited on Demand
The provisions of NDCC Section 39-06-16 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
156
Every licensee shall have the licensee’s operator’s license or permit in the licensee’s immediate possession at all times when operating a motor vehicle and shall display the same, upon demand of any district court, municipal court, a patrolman, peace officer or a field deputy or inspector of the State Highway Department. However, no person charged with violating this section may be convicted or assessed any court costs if the person produces in court, to the Chief of Police or in the office of the arresting officer an operator’s license or permit theretofore issued to that person and valid and not under suspension, revocation or cancellation at the time of the person’s arrest.
9.2006 Penalty
The provisions of NDCC Section 39-12-21 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
Any driver of a vehicle who refuses to stop and submit the vehicle and load to a weighing when directed to do so by any police officer or any agent of this state having police powers relating to motor vehicles is guilty of an infraction.
ARTICLE 21 - Disposition of Traffic Offenses
9.2101 Halting Person for Violating Traffic Regulations - Duty of Officer Halting
The provisions of NDCC Section 39-07-07 and all subsequent amendment shall be and are hereby incorporated by reference in this ordinance.
Whenever any person is halted for the violation of any of the provisions of NDCC Chapters 39-01 through 39-13, 39-18, 39-21 and 39-24, or of equivalent City ordinances, the officer halting that person, except as otherwise provided in Section 39-07-09 and Section 39-20-03.1 or 39-20-03.2 may:
1. Take the name and address of the person;
2. Take the license number of the person’s motor vehicle; and
3. Issue a summons or otherwise notify that person in writing to appear at a time and place to be specified in the summons or notice.
A halting officer employed by the City may not take a person into custody or require that person to proceed with the officer to any other location for the purpose of posting bond, where the traffic violation was a non-criminal offense under NDCC Section 39-06.1-02. The officer shall provide the person with an envelope for use in mailing the bond.
157
9.2102 Hearing - Time - Promise of Defendant to Appear - Failure to Appear - Penalty
The provisions of NDCC Section 39-07-08 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The time to be specified in the summons or notice provided for in 9.2201 must be within thirty-five (35) days after the issuance of the summons or notice or earlier if so ordered by the municipal judge or if the person halted demands an earlier hearing. If the person halted desires, the person may have the right, at a convenient hour, to an immediate hearing or to a hearing within twenty-four (24) hours. The hearing must be before the municipal court. Upon the receipt from the person halted of a written promise to appear at the time and place mentioned in the summons or notice, such officer shall release the person from custody. Any person refusing to give a written promise to appear must be taken immediately by the halting officer before the nearest or most accessible magistrate, or to such other place or before such other person as may be provided by a statute or ordinance authorizing the giving of bail. Any person willfully violating the person’s written promise to appear is guilty of an offense, regarding of the disposition of the charge upon which the person originally was halted. The time limitations for a hearing as provided by this section do not preclude a recharging of the alleged violation if the person being charged receives a new summons or notice subject to the provisions of this section.
9.2103 Offenses Under Which Person Halted May Not be Entitled to Release Upon Promise to Appear
The provisions of NDCC Section 39-07-09 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The provisions of Section 9.2101 do not apply to a person if:
1. The halting officer has good reason to believe the person guilty of any felony or if the person is halted and charged with any of the offenses listed in NDCC Section 39-06.1-05, but not listed in subsection 2 of said section; or
2. The halting officer, acting within the officer’s discretion, determines that it is inadvisable to release that person upon a promise to appear and if the person has been halted and charged with any of the following offenses
a. Reckless driving.
158
b. Driving in excess of speed limitations established by the state or by local authorities in their respective jurisdictions.
c. Driving while license or driving privilege is suspended or revoked for violation of NDCC Section 39-06-42, or an equivalent ordinance.
d. Operating a modified vehicle.
e. Driving without liability insurance in violation of NDCC Section 39-08-20.
f. Failing to display a placard or flag, in violation of any rule implementing NDCC Section 39-21-22, while transporting explosive or hazardous materials.
g. Operating an unsafe vehicle in violation of subsection 1 of NDCC Section 39-21-45.
9.2104 Traffic Violations Non-criminal – Exceptions - Procedures
Any person cited, in accordance with the provisions of NDCC Sections 39-07-07 and 39-07-08, for a traffic violation under state law or municipal ordinance, other than an offense listed in NDCC Section 39-06.1-05, is deemed to be charged with a non-criminal offense. The person may appear before the designated official and pay the statutory fee for the violation charged at or before the time scheduled for a hearing. If the person has posted bond in person or by mail, the person may forfeit bond by not appearing at the designated time. If the person appears at the time scheduled in the citation, the person may make a statement in explanation of the person’s action, and the official may at that time waive, reduce or suspend the statutory fee or bond, or both. If the person cited follows the foregoing procedures, the person is deemed to have admitted the violation and to have waived his right to a hearing on the issue of commission of the violation. The bond required to secure appearance before the official designated in the citation must be identical to the statutory fee established by NDCC Section 39-06.1-06. Within ten (10) days after forfeiture of bond or payment of the statutory fee, the official having jurisdiction over the violation shall certify to the licensing authority:
1. Admission of the violation; and
2. In speeding violations, whether the speed charged was in excess of the lawful speed limit by more than nine (9) miles (14.8 kilometers) per hour and the miles (kilometers) per hour by which the speed limit was exceeded.
159
This section shall not be construed as allowing a halting officer to receive the statutory fee or bond, unless he is otherwise authorized by law to do so. (Source: NDCC Section 30-06.1-02)
9.2105 Failure to Appear, Pay Statutory Fee, Post Bond - Procedure - Penalty
The provisions of NDCC Section 39-06.1-04 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
If a person fails to choose one of the methods of proceeding set forth in Section 9.2104, the person must be deemed to have admitted to commission of the violation charged, and the official having jurisdiction shall report such fact to the licensing authority within ten (10) days after the date set for the hearing. Failure to appear at the time designated, after signing a promise to appear, without paying the statutory fee or posting and forfeiting bond is a class B misdemeanor. Failure to appear without just cause at the hearing must also be deemed an admission of commission of the violation charged.
9.2106 Amount of Statutory Fees
The provisions of NDCC Section 39-06.1-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
The fees required for a criminal disposition pursuant to Section 9.2104 shall be as follows:
1. For a nonmoving violation as defined in Section 9.2107, a fee of any amount not to exceed twenty dollars ($20.00).
2. For a moving violation as defined in Section 9.2108, a fee of twenty dollars ($20.00), except no fee may be imposed for a violation of Section 9.1702.
3. For a violation of Section 9.0502 a fee established as follows:
Miles Per Hour Over
Lawful Speed Limit Fee
______________________________________________________________
1 - 5 $ 5.00
6 - 10 $ 5.00 plus $1/each mph over 5 mph over limit
160
11 - 15 $ 10.00 plus $1/each mph over 10 mph over limit
16 - 20 $ 15.00 plus $2/each mph over 15 mph over limit
21 - 25 $ 25.00 plus $3/each mph over 20 mph over limit
26 - 35 $ 40.00 plus $3/each mph over 25 mph over limit
36 - 45 $ 70.00 plus $3/each mph over 35 mph over limit
46 + $100.00 plus $5/each mph over 45 mph over limit
______________________________________________________________
4. For a violation of Section 9.0501, or an ordinance defining careless driving, a fee of thirty dollars ($30.00).
5. For a violation of Section 9.0508, or an ordinance defining care required in driving, a fee of not less than ten dollars ($10.00) nor more than thirty dollars ($30.00).
6. For a violation of Section 9.1703, a fee not to exceed twenty dollars ($20.00).
9.2107 “Nonmoving Violation” Defined
The provisions of NDCC Section 39-06.1-08 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
For the purpose of 9.2106, a “nonmoving violation” means Sections 9.0922, 9.0923 or the provisions of ARTICLE 13, ARTICLE 14, ARTICLE 15, and ARTICLE 16.
9.2108 “Moving Violation” Defined
The provisions of NDCC Section 39.06.1-09 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
For the purpose of 9.2106, a “moving violation” means a violation of ARTICLE 5, ARTICLE 6, ARTICLE 9, ARTICLE 11, ARTICLE 17, ARTICLE 18 and ARTICLE 20, except those sections for which a specific penalty is provided.
9.2109 General Penalty for Violation of Chapter
The provisions of NDCC Section 39-07-06 and all subsequent amendments shall be and are hereby incorporated by reference in this ordinance.
161
Any person violating any of the provisions of this chapter for which another criminal penalty is not provided specifically is guilty of an infraction as defined in NDCC Section 12.1-32-01. As used in this section, the phrase “another criminal penalty” includes provision for payment of a fixed fee for violating another section of this chapter but does not include other administrative sanctions which may be imposed.
9.2110 Notification of Parents or Guardians of Juvenile Traffic Offenders
The municipal judge or municipal court clerk shall notify the parent or guardian of any juvenile appearing before the court on a traffic offense of the charge as contained in the citation, the penalty attached to the offense and the time and place of any court hearing on the matter.
ARTICLE 22 - Sections not Adopted
The sections of NDCC Title 39 not expressly adopted in ARTICLE 1 through ARTICLE 21, inclusive, are not adopted by reference.
ARTICLE 23 - Filing of Ordinance
Incident to the adoption of certain portions of NDCC Title 39 by reference, a copy of the text of the adopted code shall be filed in the office of the City Auditor as required by NDCC Section 40-05-01(1) for use and examination by the public.
ARTICLE 24 - Adoption of Amendments by Reference
The adoption of certain portions of NDCC Title 39 by reference shall be construed to incorporate such amendments as may be made therein from time to time, and such copy of the adopted portions to NDCC Title 39 filed as required in ARTICLE 23 shall at all times be kept current in the office of the City Auditor of this City.
ARTICLE 25 - Severability Clause
If any provision of this ordinance or its application to any person, or circumstances is held invalid, the remainder of the ordinance or the application of the provision to other persons or circumstances is not affected.
ARTICLE 26 - Penalties
Any person who is convicted of violating or of failing to comply with any of the provisions of this ordinance where another penalty is not prescribed may be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment not to exceed thirty (30) days, or both.
162
163
CHAPTER TEN
HEALTH
ARTICLE 1 - Board of Health
10.0101 Members
10.0102 Regulations
ARTICLE 2 - Local Health Officer
10.0201 Penalty
ARTICLE 3 - Garbage, Refuse, Rubbish
10.0301 Definitions
10.0302 Accumulation of Refuse Prohibited
10.0303 Containers
10.0304 Burning
10.0305 Nuisance
10.0306 City Collection
10.0307 Fees
10.0308 Fees - Payment - Collection
10.0309 Rules and Regulations
ARTICLE 4 - Dangerous Buildings
10.0401 Standards for Repair, Vacation or Demolition
10.0402 Dangerous Buildings - Nuisances
10.0403 Duties of Building Inspector
10.0404 Duties of the City Council
10.0405 Failure to Comply with Decision of the City Council
10.0406 Violations - Penalty for Disregarding Notices or Orders
10.0407 Duties of the City Attorney
10.0408 Where Owner Absent from the City
10.0409 Duties of Fire, Police and Health Departments
10.0410 Appeal
APPENDIX 10-1: In the Matter of a “Dangerous Building” / Notice of Hearing
APPENDIX 10-2: In the Matter of a “Dangerous Building” / Notice and Order
APPENDIX 10-3: Warning
164
CHAPTER TEN
HEALTH
ARTICLE 1 – Board of Health
10.101 Members
The Board of Health is composed of the members of the City Council and City Health Officer, who may exercise all powers allowed under the law as set forth in NDCC Section 23-35-03.
10.0102 Regulations
The Board of Health may make rules regarding any nuisance, source of filth, and any cause of sickness which are necessary for public health and safety. The Board of Health shall appoint a local health officer.
ARTICLE 2 – Local Health Officer
10.0201 Penalty
Any person who violates any order, ordinance, or rule prescribed by the board of health or health officer or any rule adopted under this chapter is guilty of a Class B Misdemeanor punishable by a fine of not more than one thousand dollars ($1000.00) or by imprisonment not to exceed thirty (30) days or both such fine and imprisonment.
ARTICLE 3 – Garbage, Refuse, Rubbish
10.0301 Definitions
For the purpose of this article the following words shall have the meanings given herein:
1. “Ashes” is the residue from burning wood, coal, coke or other combustible materials.
2. “Garbage” is putrescible animal and vegetable wastes resulting from the handling, preparation, cooking and consumption of food.
3. “Refuse” is all putrescible and non-putrescible solid wastes (except body wastes) including garbage, rubbish, ashes, street cleanings,
165
dead animals, abandoned automobiles, and solid market and industrial wastes.
4. “Rubbish” is non-putrescible solid wastes (excluding ashes) consisting of both combustible and non-combustible wastes, such as paper, cardboard, tin cans, yard clippings, wood, glass, bedding, crockery and similar materials.
10.0302 Accumulation of Refuse Prohibited
No person shall permit or allow to accumulate in or about any yard, lot, place or premises; or upon any street or sidewalk, adjacent to or abutting upon any lot, block or place, or premises owned and occupied by that person, any refuse, nor allow such yard, lot, place or premises to be or remain in such condition.
10.0303 Containers
All garbage and rubbish shall be placed by the person upon whose premises the same shall have been produced or accumulated, in watertight containers, which shall be protected against the access of flies and rodents.
Containers shall be placed in the alley of those lots having garbage pick-up access to any alley and along the curb of the adjacent street as prescribed by the City for each particular location in the City.
10.0304 Burning
No garbage, refuse or rubbish shall be burned within the City.
10.0305 Nuisance
Failure to comply with the provisions of Sections 10.0302, 10.0303 and 10.0304, shall constitute a public nuisance and be punishable as such under the terms of Chapter Twelve of these ordinances.
10.0306 City Collection
All garbage and rubbish as defined herein shall be collected by the city or franchised contractor as frequently as is necessary to maintain and preserve community cleanliness and sanitation, except that this section shall not require the collection of garbage and rubbish where streets and alleys are in a temporary condition which makes it impossible to do so and in case of the failure to collect such garbage and rubbish, such failure shall not relieve the occupant of the premises from the payment of the garbage and rubbish collection fees hereinafter provided for.
166
10.0307 Fees
Fees for the collection of garbage rubbish by the City or franchised contractor and the disposal thereof shall be set by the City Council.
10.0308 Fees – Payment – Collection
In all places where water service is provided, fees for garbage and rubbish collection shall be added to and collected as a part of the water bill and collected by the water department, but shall be separately stated on the bill. Garbage and rubbish collection bills shall be due and payable at the same time as the water bill. If such charge is not paid when due the water service to such premises shall be shut off by the water department in the same manner as is now provided for in the case of delinquency in payment of water bills and such service shall not be restored without the payment of the delinquency and penalties.
In all places where water service is not provided, the fees for garbage and rubbish collection shall be paid independently to the City. If the garbage and rubbish charge so established is not paid when due, such sum may be recovered by the City in an action at law against the owner or occupant, or both, of the property so served.
10.0309 Rules and Regulations
The City shall prescribe and publish such reasonable rules and regulations in connection with preparation, handling and disposition of garbage and rubbish as may be necessary to regulate, enforce and carry out the provisions of this chapter. The City may direct that the City garbage and rubbish collection crews not collect garbage and rubbish from any premises where such rules and regulations are not complied with and the failure to collect the same shall not relieve the owner or occupant of the premises from the payment of fees nor from the enforcement of the penalties of this code. In the absence of City collection crews the health officer may give instructions to a franchised contractor.
ARTICLE 4 – Dangerous Buildings
10.0401 Standards for Repair, Vacation or Demolition
The following standards shall be followed in substance by the building inspector and the City Council in ordering repair, vacation or demolition:
1. If the “dangerous building” can be reasonably repaired so that it will no longer exist in violation of the terms of this article it shall be ordered repaired.
167
2. If the “dangerous building” is in such condition as to make it dangerous to the health, safety, or general welfare of its occupants it shall be ordered to be vacated.
3. In all cases where a building cannot be repaired so that it will no longer exist in violation to the terms of this article it shall be demolished. In all cases where a “dangerous building” is a fire hazard existing or erected in violation of the terms of this article or any ordinance of the City or statute of the State of North Dakota, it shall be demolished.
10.0402 Dangerous Buildings – Nuisances
All “dangerous buildings” as determined by the public health officer or building inspector are hereby declared to be public nuisances and shall be repaired, vacated or demolished as provided in this ordinance or under state law.
10.0403 Duties of Building Inspector
The building inspector, as designated by the City Council, shall:
1. Inspect or cause to be inspected periodically, all public buildings, schools, halls, churches, theaters, hotels, tenements, commercial, manufacturing or loft buildings for the purpose of determining whether any conditions exist which render such places a “dangerous building”.
2. Inspect any building, wall or structure about which any person to the effect files complaints that a building, wall, or structure is or may be existing in violation of this article.
3. Inspect any building, wall or structure reported by the fire or police departments of this City as probably existing in violation of the terms of this article.
4. Notify in writing the owner, occupant, lessee, mortgagee and all other persons having an interest in said building, as shown by the records in the office of the Oliver County Recorder, of any building found by the building inspector to be a “dangerous building” that: (a) the owner must vacate, or repair, or demolish said building in accordance with the terms of the notice and this article; (b) the owner or occupant must vacate said building or may have it repaired in accordance with the notice and remain in possession. Provided, that any person notified under this subsection to repair, vacate, or demolish any building shall be given such reasonable time, not exceeding thirty (30) days as may be necessary to do, or
168
have done, the work or act required by the notice provided for herein.
5. Set forth in the notice provided for in subsection 4 hereof a description of the building or structure deemed unsafe, a statement of the particulars which make the building or structure a “dangerous building”, and an order requiring the same to be put in such condition as to comply with the terms of this ordinance within such length of time, not exceeding thirty (30) days, as is reasonable.
6. Report to the City Council any noncompliance with the “notice” provided for in subsection 4 and 5 hereof.
7. Appear at all hearings conducted by the City Council and testify as to the conditions of “dangerous buildings”.
8. Place a notice on all “dangerous buildings” reading as follows: “This building has been found to be a dangerous building by the building inspector. This notice is to remain on this building until it is repaired, vacated, or demolished in accordance with the notice which has been given the owner, occupant, lessee or mortgagee of this building and all other persons having an interest in said building as shown by the records of the Oliver County Recorder. It is unlawful to remove this notice until such notice is complied with.”
10.0404 Duties of the City Council
The City Council shall:
1. Upon receipt of a report of the building inspector as provided for in Section 10.0403, subsection 6 hereof, give written notice to the owner, occupant, mortgagee, lessee and all other persons having an interest in said building as shown by the records of the Oliver County Recorder, to appear before it on the date specified in the notice to show cause why the building or structure reported to be a “dangerous building” should not be repaired, vacated or demolished in accordance with the statement of particulars set forth in the building inspector’s notice provided for herein in Section 10.0403, subsection 5.
2. Hold a hearing and hear such testimony as the building inspector or the owner, occupant, mortgagee, lessee or any other person having an interest in said building as shown by the records of the Oliver County Recorder shall offer relative to the “dangerous building”.
169
3. Make written findings of fact from the testimony offered pursuant to subsection 2 as to whether or not the building in question is a “dangerous building”.
4. Issue an order based upon findings of fact made pursuant to subsection 3 commanding the owner, occupant, mortgagee, lessee, and all other persons having an interest in said building as shown by the records of the Oliver County Recorder to repair, vacate or demolish any building found to be a “dangerous building” within the terms of this article and provided that any person so notified, except the owners, shall have the privilege of either vacating or repairing said “dangerous building”.
10.0405 Failure to Comply with Decision of the City Council
If the owner, occupant, mortgagee or lessee fails to comply with the order of the City Council or fails to appeal to the District Court within thirty (30) days as provided herein, the City through its officers and employees shall cause such building or structure to be repaired, vacated or demolished as ordered by the City Council and shall cause the costs of such repair, vacation or demolition to be charged against the land on which said building existed by special assessment, or as a municipal lien, or shall cause said cost of removal to be levied as a special tax against the land upon which said building stands or did stand or to be recovered in a suit at law against the owner.
10.0406 Violations – Penalty for Disregarding Notices or Orders
The owner of any “dangerous building” who shall fail to comply with any notice or order to repair, vacate or demolish said building given by any person authorized by this article to give such notice or order shall be guilty of an infraction and upon conviction thereof shall be fined not exceeding five hundred dollars ($500.00) for each offense and every day subsequent to such notice in which the said owner shall fail to comply with any notice or order as above stated shall be deemed a separate offense.
The occupant or lessee in possession who fails to comply with any notice to vacate or who fails to repair said building in accordance with any notice given as provided for in this article shall be guilty of an infraction and upon conviction thereof shall be fined not exceeding five hundred dollars ($500.00) for each offense and every day subsequent to such notice in which the said occupant or lessee shall fail to comply with any notice or order as above stated, shall be deemed a separate offense.
Any person removing the notice provided for in Section 10.0403, subsection 8 thereof shall be guilty of an infraction and upon conviction shall be fined not exceeding five hundred dollars ($500.00) for each offense.
170
10.0407 Duties of the City Attorney
The city attorney shall:
1. Prosecute all persons failing to comply with the terms of the notices provided for herein in Section 10.0403, subsections 4 and 5 and the order provided for in Section 10.0404, subsection 4.
2. Appear at all hearings before the City Council in regard to “dangerous buildings”.
3. Take such other legal action as is necessary to carry out the terms and provisions of this article.
10.0408 Where Owner Absent from the City
In cases, except emergency cases, where the owner, occupant, lessee or mortgagee is absent from the City, all notice or orders provided for herein shall be sent by registered or certified mail to the owner, occupant, mortgagee, lessee and all other persons having an interest in said building as shown by the land records of the Oliver County Recorder to the last known address of each, and a copy of such notice shall be posted in a conspicuous place on the "dangerous building" to which it relates. Such mailing and posting shall be deemed adequate service.
10.0409 Duties of Fire, Police and Health Departments
All employees of the fire, police and health departments shall make written reports to the building inspector of all buildings or structures which are, may be or are suspected to be “dangerous buildings” as herein defined.
10.0410 Appeal
The City Council shall serve upon the owner, occupant, mortgagee, lessee and all other persons having an interest in any building ordered to be repaired, vacated or demolished, a copy of its order. The owner, occupant, mortgagee or lessee shall thereafter have thirty (30) days from the date of the service of such order in which to appeal from such order to the District Court or to take such other legal steps to enjoin the enforcement of such order as he may deem proper.
171
APPENDIX 10-1
IN THE MATTER OF A “DANGEROUS BUILDING” LOCATED
AT ___________________________________, CENTER, NORTH DAKOTA
UNDER ARTICLE 4, CHAPTER TEN
NOTICE OF HEARING
You are hereby notified that the building inspector of the City of Center, North Dakota, has filed with the City Council a report that you have not complied with a Notice and Order that the building located at ______________________________________ was a dangerous building and was to be demolished by you prior to _________________, 20___.
You are further notified to appear before the City Council at the City offices at the Center Civic Center, Center, North Dakota, on the ____ day of ____________, 20___, at the hour of _______o’clock ___m., to show cause as to why the building reported to be a “dangerous building”, should not be demolished in accordance with the statement of particulars set forth in the Building Inspector’s Notice.
Dated___________, 20___.
THE CITY OF CENTER, NORTH DAKOTA
By: _____________________________
Mayor
ATTEST:
City Auditor
172
APPENDIX 10-2
IN THE MATTER OF A “DANGEROUS BUILDING” IN
THE CITY OF CENTER, NORTH DAKOTA,
LOCATED AT:
_________________________________________
NOTICE AND ORDER
You are hereby notified that the undersigned building inspector of the City of Center, North Dakota, acting pursuant to Article 4, Chapter 10 of the Ordinances of the City of Center, 2005, has made an inspection of the following described building in which you are, or appear to be, interested, to-wit: _______
______________________________________________________________
______________________________________________________________
You are further notified that the undersigned building inspector deems the foregoing described building to be dangerous in the following particulars: ______
_______________________________________________________________
_______________________________________________________________
YOU ARE THEREFORE ORDERED TO ________________________
______________________________________________________________
______________________________________________________________
the said building on or before the _______ day of___________________, 20____.
Dated this _____ day of ___________, 20_____.
________________________________
Building Inspector
173
APPENDIX 10-3
(Should be printed in red but not made invalid if printed in different color.)
WARNING
Whereas it has been determined by appropriate inspection that the dwelling or building to which this notice is attached does not comply with Ordinances of the City of Center, ND, all persons are hereby warned that it is unlawful to rent, lease, let, occupy or permit the use or occupancy of this dwelling or building, for dwelling purposes or as a place of employment for human beings, or to remove or molest this notice.
________________________________
Center City Health Officer
Center, North Dakota
174
CHAPTER ELEVEN
ANIMALS AND FOWL
ARTICLE 1 - General Regulations
11.0101 Cruelty - Penalty
11.0102 Dangerous Animals
11.0103 Permit - When Issued
11.0104 Killing Dangerous Animals
11.0105 Diseased Animals
11.0106 Housing
11.0107 Keeping of Certain Animals Prohibited
11.0108 Strays
11.0109 Noises
11.0110 Penalty
ARTICLE 2 - Dogs and Cats
11.0201 License Required
11.0202 Licensing Procedure and Terms
11.0203 License Fee
11.0204 License: When Due and Payable
11.0205 Dog or Cat Running at Large Prohibited
11.0206 Disposition of Unlawful Dogs or Cats
11.0207 Disposition of Unclaimed Dogs or Cats
11.0208 Return to Owner if Known
11.0209 Noisy Dog or Cat Prohibited
11.0210 Nuisance - When
11.0211 Penalty
175
CHAPTER ELEVEN
ANIMALS AND FOWL
ARTICLE 1 – General Regulations
11.0101 Cruelty – Penalty
No person shall cruelly treat any animal in the City in any way. Any person who inhumanly beats, underfeeds, overloads or abandons any animal shall be deemed guilty of an offense for which the maximum penalty shall be a fine of one thousand dollars ($1000.00), thirty (30) days imprisonment, or both such fine and imprisonment. (Source: NDCC Section 36-21.1-02)
11.0102 Dangerous Animals
It shall be unlawful to permit any dangerous animal or vicious animal of any kind to run at large within the City. Exhibitions or parades of wild animals may be conducted only upon securing a permit from the Chief of Police. It shall also be unlawful to keep or harbor within the City any dangerous animal without first having obtained a permit to keep or harbor such animal from the Chief of Police.
11.0103 Permit – When Issued
The Chief of Police shall have discretion as to whether or not to issue a permit pursuant to Section 11.0102. If the Chief of Police shall refuse to issue a permit, the decision may be appealed to the City Council. No permit shall be issued without first obtaining a description of the animal, the name of the owner or person in charge, the purpose for which the animal is kept, and such other pertinent information as the Chief of Police shall determine. Any dangerous animal kept or allowed to run at large without the owner or keeper having first obtained a permit in compliance with this section is hereby declared a nuisance and the owner or keeper shall be guilty of a violation of this article.
11.0104 Killing Dangerous Animals
The members of the police department or any other person in the City are authorized to kill any dangerous animals of any kind when it is necessary for the protection of any person or property.
11.0105 Diseased Animals
No domestic animal afflicted with a contagious or infectious disease shall be allowed to run at large, or to be exposed in any public place whereby the
176
health of man or beast may be affected; nor shall such diseased animal be shipped or removed from the premises of the owner thereof, except under the supervision of the Chief of Police or the health officer.
It is hereby made the duty of the health officer to secure such disposition of any diseased animal and such treatment of affected premises as to prevent the communication and spread of the contagion or infection, except in cases where the state veterinarian is empowered to act.
11.0106 Housing
No person shall cause or allow any stable or place where any animal is or may be kept to be unclean, or unwholesome.
11.0107 Keeping of Certain Animals Prohibited
It shall be unlawful to keep any live sheep, swine or pigs, cattle, chickens or other poultry, goats, or rabbits in the City. This section shall not apply to any person, partnership or corporation keeping or handling such animals under consignment in the course of regular business or to a licensed livestock auction market.
11.0108 Strays
It shall be unlawful to permit any cattle, horses, sheep, swine, goats or poultry to run at large in the City; and any such animal running at large in any public place in the City shall be impounded. It shall further be unlawful to picket or tie any such animal in any of the streets of the City for the purpose of grazing or feeding.
11.0109 Noises
It shall be unlawful to harbor or keep any animal, which habitually disturbs the peace by loud noises at any time of the day or night.
11.0110 Penalty
Any person who shall violate the provisions of this article for which a specific penalty is not otherwise provided shall be guilty of an infraction for which the maximum penalty is a fine of five hundred dollars ($500.00). The owner of any animal impounded pursuant to the provisions of this article shall pay all costs and charges assessed for such impoundment before such animal shall be released to the owner.
177
ARTICLE 2 – Dogs and Cats
11.0201 License Required
No dog or cat shall be permitted to be or remain in the City without being licensed as hereinafter provided if over two months of age. It shall be the duty of the owner or keeper of any dog or cat kept within the City to have the dog or cat inoculated against rabies.
11.0202 Licensing Procedure and Terms
All dogs and cats shall be registered as to sex, breed, name and address of owner and name of dog or cat. Licenses shall be issued by the Auditor on an annual basis as hereinafter more fully provided. The person paying the license fee shall receive a receipt therefore and a metal tag or badge with which to mark the animal. It shall be the duty of the owner or keeper to cause such license tag or badge to be securely attached around the animal’s neck and kept there at all times during the license period.
11.0203 License Fee
The license fee shall be $5.00 annually for each male dog and cat and each spayed female dog and cat, and $10.00 for all other dogs and cats. The owner of any spayed female dog shall present to the Auditor a letter or certificate signed by a licensed veterinarian to the effect that such dog has been spayed or such other evidence as the Auditor shall require.
11.0204 License: When Due and Payable
The license fees or renewal fees previously provided for shall become due and payable on the 1st day of June in each year and shall become delinquent on the 1st day of September in each year. If the fee is not paid before the first day of September a penalty of $5.00 shall be added to the license or renewal fee.
11.0205 Dog or Cat Running at Large Prohibited
It shall be unlawful for the owner or keeper of any dog or cat to permit the same to run at large in the City at any time. A dog or cat shall not be considered running at large if attended and on a leash or when in the confines of the owner’s or keeper’s premises.
11.0206 Disposition of Unlawful Dogs or Cats
Any unlicensed dog or cat or any dog or cat running at large may be taken up by any police officer and impounded at the City pound, or such other place as may be designated by the City Council. The dog or cat shall not be released to
178
any person until such dog or cat is licensed (if unlicensed); a fee of $10.00 is paid for the taking of each animal, and all pound charges are paid directly to the facility where the dog or cat is housed.
11.0207 Disposition of Unclaimed Dogs or Cats
The owner or keeper shall be notified of the taking of the dog or cat. If the owner or keeper fails to pay the charges (including license if necessary) and claim the animal within three days of notification the animal may be destroyed. If the owner or keeper is unknown, the Chief of Police shall give public notice of the taking of the animal before it is destroyed or otherwise disposed of.
11.0208 Return to Owner if Known
Notwithstanding the provisions of Section 11.0206, if a dog or cat is found at large and its owner can be identified and located, such dog or cat need not be impounded but may, instead, be taken to the owner. In such case the police officer or other officer may proceed against the owner or keeper for violation of this article.
11.0209 Noisy Dog or Cat Prohibited
It shall be unlawful to keep or harbor within the City any dog or cat that disturbs the peace by habitually howling, barking, whining, meowing or making other disagreeable noise. Any person wishing to file a complaint shall be required to give his name and address and sign a complaint.
11.0210 Nuisance – When
Any licensed dog or cat, any dog or cat running at large, any dog or cat disturbing the peace, or any dog or cat molesting passers by, chasing vehicles or trespassing upon private property is hereby declared to be a nuisance.
11.0211 Penalty
Any person violating any provision of this article where no penalty is specifically attached shall be guilty of an infraction and be fined in an amount not to exceed five hundred dollars ($500.00).
179
CHAPTER TWELVE
PUBLIC NUISANCES
ARTICLE 1 - Sanitary Nuisances
12.0101 Residence - When Sewer and Water Required
12.0102 Outhouses - Cesspools - A Nuisance
12.0103 Outhouses - Cesspools - Exceptions
12.0104 Outhouses - Cesspools - Offensive Odors
12.0105 Outhouses - Cesspools - Cleaning of
12.0106 Dead Animals
12.0107 Water Pools - Putrid Substances
ARTICLE 2 - Smoke - Gases
12.0201 Smoke, Dust, Ashes, Cinders, Gases - A Nuisance
12.0202 Smoke, Dust, Ashes, Cinders, Gases - Prohibited
ARTICLE 3 - Radio Interference and Noise Control
12.0301 Radio Interference Prohibited
12.0302 Loud, Disturbing, Unnecessary Noises - Prohibited
ARTICLE 4 - Automobiles - Abandoned Property
12.0401 Definitions
12.0402 Removal
12.0403 Notice to Owner of Abandoned Vehicle
12.0404 Sale
12.0405 When Proceeds May be Claimed
ARTICLE 4.1 – Property Found on Private Lands
12.04.101 Definitions
12.04.102 Storage of Junk, Junk Automobiles – Contrary to Public Health and Safety-Nuisance
12.04.103 Unlawful to Store or Accumulate Junk, Junk Automobiles, etc.
12.04.104 Unlawful to Dismantle Automobile Except on Business Premises
12.04.105 Unlawful to Maintain Blighted Structure
12.04.106 Unlawful to Store Building Materials Except on Business Premises
12.04.107 Police Department May Remove Junk Automobiles or Abandoned Vehicles
12.04.108 Opportunity for Hearing
12.04.109 Disposition of Junk Automobiles or Abandoned Vehicles Determined to be of No Value
180
12.04.110 Abatement without Prior Notice
12.04.111 Other Remedies: Harboring a Nuisance
12.04.112 Penalty Section
ARTICLE 5 - Noxious Weeds
12.0501 Definition
12.0502 Weeds Prohibited
12.0503 Notice to Destroy
12.0504 Action Upon Non-Compliance
12.0505 Cost Assessed to Property
181
CHAPTER TWELVE
PUBLIC NUISANCES
ARTICLE 1 – Sanitary Nuisances
12.0101 Residence – When Sewer and Water Required
It shall be unlawful for any person to use or occupy or permit to be used or occupied for residence purposes, any premises or building within the corporate limits of this City without first making or causing to be made proper connections with the City’s sewer and water facilities and mains.
The term “proper connections” when used in this section shall be construed to mean connections with the water mains and sanitary sewers which are equipped and furnished with proper valves and fittings so as to enable such water connections to be used at all times. Sanitary toilets and drains and such equipment shall at all times be kept in repair and in a manner so as to make them available for household use and in condition to be used at all seasons of the year.
12.0102 Outhouses – Cesspools – A Nuisance
The use, construction, maintenance, building or erection of any outhouse, privy, vault or cesspool within this City is hereby declared to be a nuisance and a menace to public health, when in violation of Section 12.0101.
12.0103 Outhouses – Cesspools – Exceptions
1. Private sewage systems and private water supplies may be constructed to serve new buildings to be built in areas not included in Section 12.0101, providing such lot area complies with any zoning requirements.
2. Private sewage systems and private water systems may be installed in existing buildings in areas not included in Section 12.0101.
3. Each private sewage system or private water supply hereafter altered or constructed shall conform to the State Health Department Standards.
12.0104 Outhouses – Cesspools – Offensive Odors
It shall be unlawful for the owner or occupant of any lot or piece of ground within the corporate limits of this City to permit any private sewer system to emit
182
any offensive odors or to become dangerous or injurious to public health or offensive to sense of smell of the people of the City. Any private sewer system emitting such odor is hereby declared to be a nuisance and a menace to the public health of the City.
12.0105 Outhouses – Cesspools – Cleaning of
In the cleaning of private septic tanks and sewage systems the contents thereof shall be removed in containers fitted so as to prevent the escape of odors or materials therefrom and disposed of in a manner approved by the City health officer.
The pumping of a private sewage system on the surface of the ground or hauling contents thereof in such a manner as to allow the material to spill on the ground, street or public way is hereby declared to be a public nuisance.
12.0106 Dead Animals
Any person who owned or had possession or control of a dead animal prior to its death shall remove or cause the same to be removed within five (5) hours from the time the animal dies and have the same buried or disposed of in some other sanitary way approved by the City health officer. Any dead animal remaining in any street, alley or other public place in this City, or in any private premises within this City, for more than five (5) hours after the animal shall have died, is hereby declared to be a nuisance. Any person allowing any animal which that person controlled or possessed, prior to its death, to remain in any street, alley or public place, or on any private premises within the City for more than five (5) hours after its death shall be guilty of a violation of this article.
12.0107 Water Pools – Putrid Substances
It shall be unlawful for the owner or occupant of any parcel of ground in this City to permit water or putrid substance whether animal or vegetative to accumulate or stand so as to cause an offensive odor to be emitted therefrom or to become injurious or dangerous to the health of the neighborhood. Any pool of water and any putrid substance permitted to become offensive or injurious to the public health are hereby declared to be a public nuisance.
ARTICLE 2 – Smoke – Gases
12.0201 Smoke, Dust, Ashes, Cinders, Gases – A Nuisance
The emission of dense smoke, ash, dust, cinders or noxious gases from any machine, contrivance or from the smoke stack or chimney of any building or premises in such quantities as to cause injury or detriment to any person or persons or to the public, or to endanger the comfort, health or safety of any
183
person or persons, or in such manner as to cause or tend to cause damage or injury to property, is hereby declared to be a public nuisance.
12.0202 Smoke, Dust, Ashes, Cinders, Gases – Prohibited
No person, persons, association or corporation shall cause, permit or allow the escape from any smoke stack or chimney into the open air, of such quantities of dense smoke, ash, dust, soot, cinders, acid or other fumes, dirt, or other material, or noxious gases, in such place or manner as to cause injury, detriment or nuisance to any person or persons, or to the public, or to endanger the comfort, health or safety to any such person or persons, or the public, or in such manner as to cause or have a natural tendency to cause injury or damage to business or property.
ARTICLE 3 – Radio Interference and Noise Control
12.0301 Radio Interference Prohibited
It shall be unlawful for any person knowingly to maintain, use, operate or cause to be operated within this City, any machine, device, appliance, equipment or apparatus of any kind whatsoever, the operation of which shall cause reasonably preventable electrical interference with radio reception within the City limits. The maintenance, use or operation within the City of any machine, device, appliance, equipment or apparatus of any kind so as to interfere with radio reception in violation hereof is hereby declared a public nuisance.
12.0302 Loud, Disturbing, Unnecessary Noises – Prohibited
The making, creating or maintenance of loud, unnatural or unusual and disturbing noises are a detriment to public health, comfort, convenience, safety and welfare, and are hereby declared to be unlawful and a public nuisance. The following acts, among others, are declared to be prohibited noises in violation of this section, but such enumeration is not exclusive:
1. The sounding of horns or signaling devices on any motor vehicle or motorcycle on any street or public place except as a danger warning.
2. The using, operating or permitting to be played, used or operated, any radio, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants. The operation of any such set, instrument, phonograph, machine or device in such a manner as to be plainly audible at a distance of fifty (50) feet from the building, structure or
184
vehicle in which it is located shall be prima facie evidence of a violation of this section.
3. Yelling, shouting, hooting, whistling or singing on the public streets, particularly between the hours of 11:00 PM and 7:00 AM, or at any time or place so as to annoy or disturb the quiet, comfort or repose of persons in any office, or in any dwelling, hotel or other type of residence, or of any persons in the vicinity.
ARTICLE 4 - Automobiles – Abandoned Property
12.0401 Definitions
a. “Abandoned personal property” shall be any personal property, which has been located on a street, alley, other public way, or parking lot of the city or which has been removed from such a location to a public parking lot, city storage or city building by proper authorities to prevent a nuisance, to safeguard the property or to avoid obstruction of the public ways.
b. “Abandoned motor vehicle” means a motor vehicle, as defined in NDCC Section 39-01-01, that has remained for a period of more than forty-eight (48) hours on public property illegally or lacking vital component parts or has remained for a period more than forty-eight (48) hours on private property without consent of the person in control of such property or in an inoperable condition such that it has no substantial potential for use consistent with its functions unless it is kept in an enclosed garage or storage building.
12.0402 Removal
After a period of forty-eight (48) hours shall have elapsed from the commencement of the abandonment, the city shall be entitled to take and store the property.
12.0403 Notice to Owner of Abandoned Vehicle
a. When an abandoned motor vehicle is more than seven (7) model years of age, is lacking vital components parts, and does not display a license plate currently valid in North Dakota, or any other state or foreign country, it is immediately eligible for disposition, and must be disposed of to a scrap iron processor licensed by the State of North Dakota, and is not subject to the notification, reclamation, or title provisions of this ordinance.
185
b. When an abandoned motor vehicle does not fall within subsection (a.) above, the city shall take it into custody and shall further give notice of the taking within ten (10) days.
c. The notice shall set forth the date and place of the taking, the year, make, model, and serial number of the abandoned motor vehicle and the place where the vehicle is being held. The city shall inform the owner and any lienholders or secured parties of their right to reclaim the motor vehicle as specified below in this ordinance, and shall state that failure of the owner or lienholders or secured parties to exercise their right to reclaim the vehicle is deemed a waiver by them of all right, title, and interest in the vehicle and a consent to the sale of the vehicle at a public auction pursuant to this ordinance.
d. The owner, secured parties, or lienholder of an abandoned motor vehicle, which has been taken into custody, have a right to reclaim such vehicle from the city upon payment of all towing and storage charges resulting from taking the vehicle into custody provided said vehicle is reclaimed within fifteen (15) days after the notice specified in Section 3 (c.).
12.0404 Sale
An abandoned vehicle, not more than seven (7) model years of age, taken into custody and not reclaimed pursuant to the provisions of this ordinance must be sold to the highest bidder at public auction following a reasonable public notice thereof. One publication of said sale at least ten (10) days prior to the sale shall be deemed reasonable public notice. The purchaser must be given a receipt and a form prescribed by the State of North Dakota, which shall be sufficient title to dispose of the vehicle. The receipt also entitles the purchaser to register the vehicle and receive a certificate of title free and clear of all liens and claims of ownership. License plates displayed on an abandoned vehicle must be removed and destroyed prior to the purchaser taking possession of the vehicle.
12.0405 When Proceeds May be Claimed
From the proceeds of the sale of abandoned motor vehicle, the city shall reimburse itself for the costs of towing, preserving, and storing the vehicle and all notice and publication costs incurred pursuant to this ordinance. Any remainder from the proceeds of sale shall be held for the owner of the vehicle or entitled lienholder or secured parties for ninety (90) days and then shall be deposited in a state treasury of the State of North Dakota as provided in Section 1 of Article IX of the Constitution of North Dakota and credited to the permanent school fund.
186
ARTICLE 4.I - Property Found on Private Lands
12.04.101 Definitions
The following words or terms when used herein shall be deemed to have the meanings set forth below:
a. “Abandoned vehicle” shall include without limitation any vehicle which has remained on private property for a period of forty-eight (48) continuous hours, or more, without consent of the owner or occupant of the property or for a period of forty-eight (48) continuous hours or more, after the consent of the owner or occupant has been revoked.
b. “Antique motor vehicle” – any motor vehicle which is at least 40 years old and licensed as an antique vehicle in accordance with NDCC Section 39-04-10.4.
c. “Blighted structure” shall include without limitation any dwelling, garage, or outbuilding, or any factory, shop, store, warehouse or any other structure or part of a structure, which because of fire, wind, or other natural disaster, or physical deterioration, is no longer habitable as a dwelling, nor useful for the purpose for which it may have been intended.
d. “Building materials” shall include without limitation, lumber, bricks, concrete or cinder blocks, plumbing materials, electric wiring or equipment, heating ducts or equipment, shingles, mortar, concrete or cement, nails, screws, or any other materials used in constructing any structure.
e. “Car enthusiast” – means the owner of one or more specialized vehicles who collects, purchases, acquired, trades, or disposes of special interest vehicles or parts thereof for his own use in order to restore, preserve, and maintain a special interest vehicle.
f. “Collector” – means the owner of one or more specialized vehicles who collects purchases, acquires, trades, or disposes of special interest vehicles or parts thereof for his own use in order to restore, preserve, and maintain a special interest vehicle or antique vehicle.
g. “Inoperative” shall mean a condition of being junked, wrecked, wholly or partially, dismantled, discarded, abandoned, or unable to perform the functions or purposes for which a vehicle was originally constructed.
187
h. “Junk” shall include without limitation parts of machinery or motor vehicles, unused furniture, stoves, refrigerators, or other appliances, remnants of wood, metal, or any other castoff material of any kind, whether or not the same could be put to any reasonable use.
i. “Junk automobiles” shall include without limitation any motor vehicle which is not licensed for use upon the highways of the state for a period in excess of sixty (60) days and shall also include whether licensed or not any motor vehicle which is inoperative for any reason for a period in excess of sixty (60) days, provided that there is excepted form this definition unlicensed but operative vehicles which are kept as a stock in trade of a regularly licensed and established new or used automobile dealer.
j. “Parts car” – means a motor vehicle generally in non-operable condition, which is owned by the collector to furnish parts to restore, preserve, and maintain a special interest vehicle or antique vehicle.
k. “Person” shall include all natural persons, firms, co-partnerships, corporations, and all associations of natural persons, incorporated or unincorporated, whether acting by themselves or by a servant, agent, or employee. All persons who violate any of the provisions of this article, whether as owner, occupant, lessee, agent, servant or employee shall, except as herein otherwise provided, be equally liable as principals.
l. “Special interest vehicle” – means a motor vehicle, whether licensed or unlicensed, which is used for competition or exhibition by a car enthusiast and is either operative or is being diligently worked on by the car enthusiast for the purpose of making the vehicle operative, and also may be a vehicle which is at least 20 years old and which has not been altered or modified from original manufacturer’s specifications and, because of its historic interest, is being preserved by hobbyists.
m. “Trash” and “rubbish” shall include any and all forms of debris not herein otherwise classified.
12.04.102 Storage of Junk, Junk Automobiles – Contrary to Public Health and Safety-Nuisance
It is hereby determined that the storage or accumulation of trash, rubbish, junk, junk automobiles, abandoned vehicles, building materials, and the maintenance of blighted structures upon any private property within the City
188
tends to result in blighted and deteriorated neighborhoods, increase criminal activity, spread vermin and disease and is contrary to the public peace, health, safety and general welfare of the community and therefore constitutes a nuisance.
12.04.103 Unlawful to Store or Accumulate Junk, Junk Automobiles, etc.
It shall be unlawful and is declared a nuisance for any person to store, or permit the storage or accumulation of trash, rubbish, junk, junk automobiles, or abandoned vehicles on any private property in the City except as follows:
a. Within a completely enclosed building.
b. Upon the business premises of a duly licensed junk dealer, junk buyer, dealer in second hand goods or junk gatherer. However, any junk dealer, junk buyer, dealer in used parts or dealer in second hand goods or junk gatherer shall store said items in an area which shall be enclosed in a building or located behind a site fence approved by the city and shall be stored in a manner so as not to create unsightly mess, deterioration of neighborhoods, increase criminal activities, spread vermin and disease or in any way create a situation contrary to the public peace, health, safety, or general welfare.
c. Antique vehicle, special interest vehicle, or parts car owned by a collector or car enthusiast, and covered by a secured automobile cover, specifically designed to cover automobiles, when the antique vehicle, special interest vehicle or parts car are not being used or worked on. Said vehicles shall be located on such an area on the vehicle owner’s property and in a manner so as not to create an unsightly mess, deterioration of neighborhoods, increase criminal activities, spread vermin and disease or in any way create a situation contrary to the public peace, health, safety, or general welfare. Where practicable storage should be out of sight or as near out of sight as possible from a public street or neighbors yard. However, the requirements of this section shall not apply to any special interest vehicle, which is operable and licensed to be operated on North Dakota highways and streets.
12.04.104 Unlawful to Dismantle Automobile Except on Business Premises
It shall be unlawful and is declared a nuisance for any person to dismantle, cut up, remove parts from, or otherwise disassemble any automobile, whether or not the same be a junk automobile, abandoned vehicle or otherwise, or any appliance or machinery, except as set forth below:
189
a. Dismantling may take place in a completely enclosed building;
b. Dismantling may take place upon the business premises of a duly licensed junk dealer, junk buyer, dealer in used auto parts, and dealer in second hand goods or junk gatherer.
c. Automobiles may be dismantled on private property, for purposes of making necessary repairs or improvements to said vehicles provided that said vehicles may not be dismantled for a period of time longer than 120 consecutive days and that said dismantling shall be done in a manner so as not to create an unsightly mess, unreasonable noise, deterioration of neighborhoods, increase criminal activities, spread vermin and disease or in any what way create a situation contrary to the public peace, health, safety, or general welfare. In all cases, vehicles dismantled on private property shall be the property of the owner or resident of the property. Vehicles which have tires or other external parts removed from them shall be covered, as specified in Section 12.04.103 (c) of this ordinance, when such vehicles are not being worked on.
12.04.105 Unlawful to Maintain Blighted Structure
It shall be unlawful and is declared a nuisance for any person to keep or maintain any blighted or vacant structure, dwelling, garage, outbuilding, factory, shop, store, or warehouse unless the same is kept securely locked, the windows kept glazed or neatly boarded up and otherwise protected to prevent entrance thereto by unauthorized persons or unless such structure is in the course of construction in accordance with a valid building permit issued by the City and unless such construction is completed within a reasonable time.
12.04.106 Unlawful to Store Building Materials Except on Business Premises
It shall be unlawful and is declared a nuisance for any person to store or permit the storage or accumulation of building materials on any private property, except as follows:
a. When in a completely enclosed building.
b. When stacked in a neat and orderly manner so as not to be unsightly. No storage method or arrangement shall be allowed if it presents a safety or health hazard or contributes to the spread of vermin or disease.
190
c. When building materials are part of the stock in trade of a business located on the property.
d. When such materials are being used in the construction of a structure on the property in accordance with a valid building permit issued by the city.
12.04.107 Police Department May Remove Junk Automobiles or Abandoned Vehicles
a. The Chief of Police is hereby authorized and empowered, to notify the owner, tenant, occupant, lessee or agent of the owner, of any property within the City to obey and remove junk, junk automobiles, or any other items or materials found accumulated, lying or located on such property (whether private or public). Such notice shall be served personally or delivered by certified mail, return receipt requested, to the last reasonably known address of the owner, tenant, occupant, lessee or agent of the owner, if such address is reasonably ascertainable or shall be posted on the premises at least twenty (20) days prior to abatement of the nuisance. The notice shall specify the legal description of the premises and shall set forth, if possible, the street address of the premises. It shall include an explanation of the right to a hearing on the necessity for the abatement, which is provided in this ordinance.
b. Upon the failure, neglect, or refusal of the owner, tenant, occupant, lessee or agent of the owner, so notified to abate and remove the nuisance caused by the accumulation of junk, junk automobiles, or other nuisances as specified in this ordinance, the Chief of Police is hereby authorized and empowered to pay for the abatement and removal of said nuisance. If within twenty (20) days after the date of any letter containing such notice is returned to the City because of inability to make delivery thereof, provided the same was properly addressed to the last known address of such owner, occupant, or agent of the owner, and if the Chief of Police is unable to contact such owner, occupant or agent by telephone upon reasonable effort, the Chief of Police may also pay for the abatement of the nuisance or order its removal by the City. In order to abate said nuisance, the Chief of Police or his agent is authorized to enter upon the premises described in such notice and to take whatever steps as might be reasonable required to abate the nuisance and such actions, if reasonable in nature and undertaken in good faith, said entry shall not constitute a trespass or conversion.
191
c. The costs of abatement or removal of the nuisance which are incurred by the City shall be certified by the Chief of Police to the City Auditor for assessment against property, provided however, that if the property has any value it may be disposed of as previously provided in this ordinance and funds retained shall first be applied to expenses, as specified in this ordinance, and then shall be returned to the owner of the property, if the owner can be located within ninety (90) days. If the owner cannot be located, the funds shall be returned to the treasury of the City of Center.
d. Such removal by the police department shall not excuse or relieve any person of the obligation imposed by this ordinance to keep his property free from storage or accumulation of junk automobiles or abandoned vehicles, or parts of junk automobiles or abandoned vehicles, or parts of either, or from any other violation of this ordinance, nor form the penalties for violation thereof.
12.04.108 Opportunity for Hearing
Any owner, tenant, occupant, lessee or agent of owner, of any property within the City, who has been ordered to remove junk, junk automobiles, or other items or materials found accumulated, or blighted structures, and in violation of this ordinance may seek a hearing before the Municipal Judge of the City of Center for the purpose of making a determination whether or not the items ordered to be removed by the Chief of Police are in violation of this ordinance. Any person desiring said hearing shall notify the Municipal Judge, in writing, within twenty (20) days of the receipt of or posting of the required notice and shall be given an opportunity to appear before the Municipal Judge within thirty (30) days after said notification of a desire for hearing. The City shall have the burden of proving by a preponderance of the evidence that the conditions, of which it complains, constitute a nuisance as set forth in this ordinance. The Municipal Judge shall either find for the owner of the property, in which case no further action may be taken by the City without the issuance of another notice, pursuant to this ordinance, which shall be issued only in the event of a material change in circumstances, or the Municipal Judge shall find for the City, in which case the owner shall have an additional ten (10) days from the date of service upon him by mail or in person of a copy of the Municipal Judge’s decision in which to abate the nuisance. If the owner fails, neglects, or refuses to abate the nuisance within that period of time, then the Chief of Police may proceed to enter upon the property and to abate the nuisance and such actions, if reasonable in nature and undertaken in good faith, shall not constitute a trespass or conversion.
192
12.04.109 Disposition of Junk Automobiles or Abandoned Vehicles Determined to be of No Value
Any junk automobile, abandoned vehicle, or part of either removed from unenclosed private property as provided by this ordinance, or coming into the possession of the police department by abandonment on public property in the City, which is determined by the Chief of Police to be of no value other than as scrap metal shall be disposed of by the City in such a manner as to eliminate the unsightly accumulation of such worthless hulks and the hazards to public health attendant thereto with the least practicable delay.
12.04.110 Abatement Without Prior Notice
In the event a nuisance as defined herein shall, in the opinion of the Chief of Police constituted immediate and serious danger to the health of any person, or shall constitute immediate and serious danger to private or public property, the City may, without prior notice to the owner of the premises immediate enter upon the premises and take whatever steps are required to abate the nuisance. If such actions are reasonable in nature and undertaken in good faith, such action shall note constitute trespass or conversion. Any attempt by the City to give the owner prior notice shall not constitute a waiver of the right under this section to act without prior notice.
12.04.111 Other Remedies: Harboring a Nuisance
The provisions of this ordinance shall not constitute the exclusive remedy of the City of Center to abate nuisances. The City reserves the right to proceed in any court of competent jurisdiction to obtain an injunction requiring abatement of the nuisance and such remedy may be asserted without regard to the notice requirements of this ordinance and the provisions for administrative relief set forth herein. Moreover, the harboring or maintenance of a nuisance shall constitute an offense punishable under this ordinance as set forth below.
12.04.112 Penalty Section
Any person who violates or fails to comply with any provision of this Ordinance [Ordinance #55] is guilty of an infraction and shall be charged with an infraction and subject to a fine of not more than five hundred dollars ($500.00).
ARTICLE 5 – Noxious Weeds
12.0501 Definition
Whenever used in this ordinance, the term “noxious weeds” shall mean and include all weeds of the kind known as Canada Thistle, sow thistle,
193
dandelions, quack grass, leafy spurge, field bindweed, Russian knapweed, hoary cress, dodder, or any similar unwanted vegetation over eight inches in height.
12.0502 Weeds Prohibited
No owner of any lot, place or area within the City or the agent of such owner, shall permit on such lot, place or area and the one-half of any road or street lying next to the lands or boulevards abutting thereon, noxious weeds or other deleterious, unhealthful growths.
12.0503 Notice to Destroy
The City health officer is hereby authorized and empowered to notify in writing the owner of any lot, place, or area within the City or the agent of such owner, to cut, destroy, and/or remove any noxious weeds found growing, lying, or located on such owner’s property or upon the one-half of any road or street lying next to the lands or boulevards abutting thereon. The notice shall be by certified mail addressed to said owner or agent of said owner at their last known address and shall give such owner or agent a minimum of five days to cut or destroy the noxious weeds.
12.0504 Action Upon Non-Compliance
Upon the failure, neglect, or refusal of any owner or agent to cut, destroy and/or remove noxious weeds growing, lying or located upon the owner’s property or upon the one-half of any road or street lying next to the lands or boulevards abutting thereon, after receipt of the written notice provided for in 12.0503 or within five days after the date of such notice in the event the same is returned to the City Post Office because of inability to make delivery thereof, provided the same was properly addressed to the last known address of such owner or agent, the health officer is hereby authorized and empowered to pay for the cutting, destroying, and/or removal of such noxious weeds or to order their removal by the City.
12.0505 Cost Assessed to Property
When the City has effected the removal of such noxious weeds or has paid for their removal, the actual cost thereof, if not paid by the owner prior thereto, shall be charged and assessed against the property upon which the noxious weeds were cut or destroyed. An assessment list showing the lots or tracts to be assessed with the cost against each lot or tract shall be prepared as are other special assessment lists and shall be approved by the City Council. Such assessments shall be subject to the same procedure for certification to the County Auditor, payment and collection as are other special assessments under state law.
194
CHAPTER THIRTEEN
OFFENSES
ARTICLE 1 - In General
13.0101 Criminal Contempt
13.0102 Hindering Proceedings by Disorderly Conduct
13.0103 Fleeing or Attempting to Elude a Police Officer
13.0104 Interference with Officers
13.0105 False Alarms or False Reports
ARTICLE 2 - Offenses Against Persons
13.0201 Simple Assault
13.0202 Sexual Assault
13.0203 Harassment
ARTICLE 3 - Offenses Against Property
13.0301 Criminal Mischief - Penalty
13.0302 Tampering with or Damaging a Public Service
13.0303 Consent as a Defense and Definition of “of another” for Criminal Mischief or Tampering with or Damaging a Public Service
13.0304 Criminal Trespass
13.0305 Consolidated Theft Offenses
13.0306 Theft of Property
13.0307 Theft of Services
13.0308 Theft of Property Lost, Mislaid or Delivered by Mistake
13.0309 Thefts Punishable Under City Ordinances
13.0310 Defrauding Secured Creditors - Penalty
13.0311 Retail Theft - Shoplifting
13.0312 Defenses and Proof as to Theft and Related Offenses
13.0313 Definitions
13.0314 Making or Uttering Slugs
ARTICLE 4 - Offenses Against Public Order, Health, Safety and Sensibilities
13.0401 Engaging in a Riot
13.0402 Disobedience of Public Safety Orders Under Riot Conditions
13.0403 Disorderly Conduct
13.0404 Defense when Conduct Consists of Constitutionally Protected Activity
13.0405 Gambling
13.0406 Prostitution
13.0407 Business or Labor on Sunday
195
13.0408 Cruelty to Animals
13.0409 Persons Less than Twenty-One (21) Years Prohibited - Exceptions
13.0410 Misrepresentation of Age - Obligations of Licensee
13.0411 Bottle Clubs Prohibited
13.0412 Public Intoxication - Assistance - Medical Care
13.0413 No Prosecution for Intoxication
13.0414 Objectionable Materials or Performance - Display to Minors - Definitions - Penalty
13.0415 Curfew, General Regulations - Penalty
ARTICLE 5 - Sentencing
13.0501 Classification of Offenses
13.0502 Sentencing Alternatives
13.0503 Procedure for Trial of Infraction
13.0504 Special Sanction for Organizations
13.0505 Factors to be Considered in Sentencing
13.0506 Imposition of Fine - Response to Non-payment
13.0507 Incidents of Probation
13.0508 Conditions of Probation - Revocation
13.0509 Restitution or Reparation - Procedures
13.0510 Merger of Sentences - Sentencing for Multiple Offenses
ARTICLE 6 - Penalties
196
CHAPTER THIRTEEN
OFFENSES
ARTICLE 1 – In General
13.0101 Criminal Contempt
1. The Municipal Court has power to punish for contempt of its authority for the following offenses:
a. Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
b. Misbehavior of any of its officers in their official transactions; or
c. Disobedience or resistance to its lawful writ, process, order, rule, decree or command.
2. A criminal contempt proceeding under this section is not a bar to subsequent prosecution for a specific offense if the court certifies in the judgment of conviction of criminal contempt, or the order terminating the proceeding without acquittal or dismissal, that a summary criminal contempt proceeding was necessary to prevent repetition of misbehavior disruptive of an ongoing proceeding and that subsequent prosecution as a specific offense is warranted.
3. This section shall not be construed to deprive a court of its power, by civil contempt proceedings, to compel compliance with its lawful writ, process, order, rule, decree or command or to compensate a complainant for losses sustained by reason of disobedience or resistance thereto, in accordance with the prevailing usage’s of law and equity, including the power of detention.
13.0102 Hindering Proceedings by Disorderly Conduct
A person is guilty of an offense if the person recklessly or intentionally hinders an official city proceeding by noise or violent or tumultuous behavior or disturbance.
13.0103 Fleeing or Attempting to Elude a Police Officer
Any driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given a visual or audible signal to bring the vehicle to a stop, is
197
guilty of a class B misdemeanor. A signal complies with the section if the signal is perceptible to the driver and the police officer giving such signal is in uniform, prominently displaying the officer’s badge of office, and the vehicle is appropriately marked showing it to be an official police vehicle. (Source: NDCC Section 39-10-71).
13.0104 Interference with Officers
No person in the City shall resist any police or fire officer, any member of the police or fire departments, or any person duly empowered with police or fire authority, while in the discharge or apparent discharge of duty, or in any way interfere with or hinder in the discharge of duty.
13.0105 False Alarms or False Reports
No person in the City shall intentionally make, turn in, or give a false alarm of fire, or of need for police or ambulance assistance, or aid or abet in the commission of such act. No person in the City shall make to, or file with, the police department of the City any false, misleading or unfounded statement or report concerning the commission or alleged commission of any crime occurring in the City.
ARTICLE 2 – Offenses Against Persons
13.0201 Simple Assault
1. A person is guilty of an offense if that person:
a. Willfully causes bodily injury to another human being; or
b. Negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.
2. Consent to the conduct causing bodily injury by all persons injured by the conduct is a defense if:
a. Neither the injury inflicted nor the injury threatened is such as to jeopardize life or seriously impair health;
b. The conduct and the injury are reasonable foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or
198
c. The conduct and the injury are reasonable foreseeable hazards of an occupation or profession or of medical or scientific experimentation conducted by recognized methods and the persons subjected to such conduct or injury, having been made aware of the risks involved, consent to the performance of the conduct or the infliction of the injury.
3. Assent does not constitute consent, within the meaning of this ordinance, if:
a. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense and such incompetence is manifest or known to the actor;
b. It is given by a person who by reason of youth, mental disease or defect, or intoxication, is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute the offense; or
c. It is induced by force, duress or deception. (Source: NDCC Sections 12.1-17-01,08)
13.0202 Sexual Assault
1. A person who knowingly has sexual contact with another person, or who causes another person to have sexual contact with that person, is guilty of an offense if:
a. That person knows or has reasonable cause to believe that the contact is offensive to the other person;
b. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders that other person incapable of understanding the nature of that other persons conduct;
c. That person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct, by administering or employing without the victim’s knowledge, intoxicants, a controlled substance as defined in NDCC Chapter 19-03.1, or other means for the purpose of preventing resistance;
199
d. The other person is in official custody or detained in a hospital, prison or other institution and the actor has supervisory or disciplinary authority over that other person;
e. The other person is a minor, fifteen years of age or older, and the actor is the other person’s parent, guardian, or is otherwise responsible for general supervision of the other person’s welfare; or
f. The other person is a minor, fifteen years of age or older, and the actor is an adult. (Source: NDCC Section 12.1-20-07).
13.0203 Harassment
A person is guilty of an offense if, with intent to frighten or harass another, the person:
a. Makes a telephone call anonymously or in offensively coarse language;
b. Makes repeated telephone calls, whether or not a conversation ensues, with no purpose of legitimate communication; or
c. Communicates a falsehood by telephone and causes mental anguish.
(Source: NDCC Section 12.1-17-07(1) (b), (c), and (d).)
ARTICLE 3 – Offenses Against Property
Division 1. Property Destruction and Criminal Intrusion
13.0301 Criminal Mischief – Penalty
A person is guilty of an offense if that person:
a. Willfully tampers with tangible property of another so as to endanger person or property; or
b. Willfully damages tangible property of another.
Conduct is punishable as criminal mischief under this ordinance when pecuniary loss, if intentionally caused, is not in excess of one hundred dollars ($100.00); if recklessly caused, is not in excess of two thousand dollars
200
($2,000.00); and if the damages to tangible property of another are not by means of an explosive or a destructive device.
c. The penalty for the offense of criminal mischief may not exceed a fine of one thousand dollars ($1,000.00), imprisonment from thirty (30) days, or both such fine and imprisonment. (Source: NDCC Sections 12.1-21-05 and 40-05-06)
13.0302 Tampering with or Damaging a Public Service
A person is guilty of an offense if that person causes a substantial interruption or impairment of a public communication, transportation, supply of water, gas, power or other public service by:
a. Tampering with or damaging the tangible property of another;
b. Incapacitating an operator of such service; or
c. Negligently damaging the tangible property of another by fire, explosive or other dangerous means. (Source: NDCC Section 12.1-21-06).
13.0303 Consent as a Defense and Definition of “of another” for Criminal
Mischief or Tampering with or Damaging a Public Service
For prosecution of criminal mischief under Section 13.0301 or tampering with or damaging a public service under Section 13.0302:
1. Whenever it is an element of the offense that the property is of another, it is a defense to a prosecution under those sections that the other has consented to the actor’s conduct with respect to the property.
2. Property is that “of another” if anyone other than the actor has a possessory or proprietary interest therein. (Source: NDCC Section 12.1-21-07 and 08(2)).
13.0304 Criminal Trespass
A person is guilty of an offense if, knowing that the person is not licensed or privileged to do so, that person, enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the person in charge of the premises or other authorized person or by posting in a manner reasonably likely to come to the attention of intruders. (Source: NDCC Section 12.1-22-03 (3)).
201
Division 2. Theft and Related Offenses
13.0305 Consolidated Theft Offenses
1. Conduct denominated theft in Sections 13.0306 to 13.0308 constitutes a single offense designed to include the separate offenses heretofore known as larceny, stealing, purloining, embezzlement, obtaining money or property by false pretenses, extortion, blackmail, fraudulent conversion, receiving stolen property, misappropriation of public funds, swindling and the like.
2. A charge of theft under Sections 13.0306 to 13.0308, which fairly apprises the defendant of the nature of the charges against the defendant, shall not be deemed insufficient because it fails to specify a particular category of theft. The defendant may be found guilty of theft under such charge if the defendant’s conduct falls under Sections 13.0306 to 13.0308, so long as the conduct proved is sufficiently related to the conduct charged that the accused is not unfairly surprised by the case that must be met. (Source: NDCC Section 12.1-23-01).
13.0306 Theft of Property
A person is guilty of theft if that person:
a. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof;
b. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; or
c. Knowingly receives, retains or disposes of property of another which has been stolen, with intent to deprive the owner thereof. (Source: NDCC Section 12.1-23-02).
13.0307 Theft of Services
A person is guilty of theft if:
a. The person intentionally obtains services, known by the person to be available only for compensation, by deception, threat, false token or other means to avoid payment for the services; or
202
b. Having control over the disposition of services of another to which the person is not entitled, the person knowingly diverts those services to his own benefit or to the benefit of another not entitled thereto.
Where compensation for services is ordinarily paid immediately upon their rendition, as in the case of hotels, restaurants, and comparable establishments, absconding without payment or making provision to pay is prima facie evidence that the services were obtained by deception. (Source: NDCC Section 12.1-23-03).
13.0308 Theft of Property Lost, Mislaid or Delivered by Mistake
A person is guilty of theft if the person:
a. Retains of disposes of property of another when that person knows it has been lost or mislaid; or
b. Retains or disposes of property of another when that person knows it has been delivered under a mistake as to the identity of the recipient or as to the nature or amount of the property; and with intent to deprive the owner of it, he fails to take readily available and reasonable measures to restore the property of a person entitled to have it. (Source: NDCC Section 12.1-23-04).
13.0309 Thefts Punishable Under City Ordinances
Theft under Sections 13.0306 to 13.0308 may be punished as an offense against the City ordinances if the highest value by any reasonable standard, regardless of the actor’s knowledge of such value, of the property or services which were stolen by the actor, or which the actor believed that he was stealing, or which the actor could reasonably have anticipated to have been the property or services involved, does not exceed two hundred fifty dollars ($250.00) and if:
a. The theft was not committed by threat;
b. The theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft;
c. The defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties;
d. The property stolen is not a firearm, ammunition, explosive or destructive device, or an automobile, aircraft or other motor-propelled vehicle;
203
e. The property does not consist of any government file, record, document or other government paper stolen from any government office or from any public servant;
f. The defendant is not in the business of buying or selling stolen property and he does not receive, retain or dispose of the property in the course of that business;
g. The property stolen does not consist of any implement, paper or other thing uniquely associated with the preparation of any money, stamp, bond or other document, instrument or obligation of the State of North Dakota;
h. The property stolen does not consist of livestock taken from the premises of the owner;
i. The property stolen does not consist of a key or other implement uniquely suited to provide access to property the theft of which would be a felony or was not stolen to gain such access.
j. The property stolen is not a card, plate, or other credit device existing for the purpose of obtaining money property, labor, or services on credit, or is a debit card, electronic fund transfer card, code or other means of access to an account for the purpose of initiating electronic fund transfers. (Source: NDCC Section 12.1-23-05).
13.0310 Defrauding Secured Creditors – Penalty
A person is guilty of an offense if he destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest with intent to prevent collection of the debt represented by the security interest or if he makes false statements at the time of sale as to the existence of security interests.
13.0311 Retail Theft – Shoplifting
1. Presumption. Any person concealing upon that person’s person or among that person’s belongings, or causing to be concealed upon the person or among the belongings of another, unpurchased merchandise displayed, held, offered or stored for sale in a retail mercantile establishment and removing it to a point beyond the last station for receiving payments in that retail mercantile establishment shall be prima facie presumed to have so concealed such merchandise with the intention of permanently depriving the
204
merchant of possession or of the full retail value of such merchandise.
2. Detention of Suspect – Procedure. Any peace officer or merchant who reasonably believes that a person has committed, or is in the process of committing theft may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:
a. To require the person to identify himself;
b. To verify such identification;
c. To determine whether such person has in the person’s possession unpurchased merchandise and, if so, to recover such merchandise;
d. To inform a peace officer of the detention of the person and surrender custody of that person to a peace officer;
e. In the case of a minor, to inform a peace officer, the parents, guardian or other private person interested in the welfare of that minor of this detention and to surrender custody of said minor to the person informed.
3. Definitions. As used in this section, unless the context requires otherwise:
a. An item is “concealed” within the meaning of this section if, even though there is some notice of its presence, the item itself is not visible through ordinary observation.
b. “Full retail value” means the merchant’s stated or advertised price of the merchandise.
c. “Merchandise” means any item of tangible personal property and specifically includes shopping carts.
d. “Merchant” means an owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, franchise or independent contractor or such owner or operator.
e. “Person” means any natural person or individual.
205
f. “Premises of a retail mercantile establishment” includes, but is not limited to, the retail mercantile establishment, any common use areas in shopping centers, and all parking areas set aside by a merchant, or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of said retail mercantile establishment.
g. “Retail mercantile establishment” means any place where merchandise is displayed, held, offered or stored for sale to the public.
h. “Shopping cart” means those push carts of the type or types which are commonly provided by grocery stores, drugstores or other retail mercantile establishments for the use of the public in transporting commodities in stores and markets and, incidentally, from the stores to a place outside the store.
4. Theft of unpurchased merchandise, displayed, held, offered or stored for sale in a mercantile establishment from that establishment when open for business is “shoplifting” for which the offender may be assessed a penalty upon conviction not exceeding one thousand dollars ($100.00), imprisonment of thirty (30) days, or both such fine and imprisonment. (Source: NDCC Sections 51-21-01, 51-21-02, 51-21-03 and 40-05-06).
13.0312 Defenses and Proof as to Theft and Related Offenses
1. It is a defense to a prosecution under this article that:
a. The actor honestly believed that he had a claim to the property or services involved which he was entitled to assert in the manner which forms the basis for the charge against him; or
b. The victim is the actor’s spouse, but only when the property involved constitutes household or personal effects or other property normally accessible to both spouses and the parties involved are living together. The term ‘spouse’, as used in this section includes persons living together as husband and wife.
2. It does not constitute a defense to a prosecution for conducts constituting an offense in violation of this article that:
a. Stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed;
206
b. A facility or an opportunity to engage in such conduct, including offering for sale property not stolen as if it were stolen, was provided; or
c. Mere solicitation that would not induce an ordinary law-abiding person to engage in such conduct was made by a law enforcement officer to gain evidence against a person predisposed to engage in such conduct.
3. It is a prima facie case of theft under this article if it is shown that a public servant or an officer, director, agent, employee of, or a person connected in any capacity with a financial institution has failed to pay or account upon lawful demand for money or property entrusted to him as part of his official duties or if an audit reveals a shortage or falsification of his accounts.
a. Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
b. Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business, or without the usual induce of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen. (Source: NDCC Section 12.1-23-09).
13.0313 Definitions
In this article:
1. “Dealer in property” means a person who buys or sells property as a business.
2. “Deception” means:
a. Creating or reinforcing a false impression, including false impressions as to fact, law, status, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not substantially perform the promise unless it is part of a continuing scheme to defraud; or
207
b. Preventing another from acquiring information which would affect his judgment of a transaction; or
c. Failing to correct a false impression which the actor previously created or reinforced, or which he knows to be influencing another to whom he stands in fiduciary or confidential relationship; or
d. Failing to correct an impression which the actor previously created or reinforced and which the actor knows to have become false due to subsequent events; or
e. Failing to disclose a lien, adverse claim, or other impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained or in order to continue to deprive another of his property, whether such impediment is or is not valid, or is or is not a matter of official record; or
f. Using a credit card, charge plate or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer (i.) where such instrument has been stolen, forged, revoked or canceled, or where for any other reason its use by the actor is unauthorized, and (ii.) where the actor does not have the intention and ability to meet all obligations to the issuer arising out of his use of the instrument; or
g. Any other scheme to defraud. The term “deception” does not, however, include falsifications as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. “Puffing” means an exaggerated commendation of wares in communications addressed to the public or to a class or group.
3. “Deprive” means:
a. To withhold property or to cause it to be withheld either permanently or under such circumstances that a major portion of its economic value, or its use and benefit, has, in fact, been appropriated; or
208
b. To withhold property or to cause it to be withheld with the intent to restore it only upon the payment of a reward or other compensation; or
c. To dispose of property or use it or transfer any interest in it under circumstances that make its restoration, in fact, unlikely.
4. “Fiduciary” means a trustee, guardian, executor, administrator, receiver or any other person acting in a fiduciary capacity, or any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.
5. “Financial institution” means a bank, insurance company, credit union, safety deposit company, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
6. “Obtain” means:
a. In relation to property, to bring about a transfer or purported transfer of an interest in the property, whether to the actor or another; or
b. In relation to services, to secure performance thereof.
7. “Property” means any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to, or found in land and documents although the rights represented thereby have no physical location), contract right, chose-in-action, interest in or claim to wealth, credit or any other article or thing of value of any kind. “Property” also means real property, the location of which cannot be moved if the offense involves transfer or attempted transfer of an interest in the property.
8. “Property of another” means property in which a person other than the actor or in which a government has an interest without consent, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person or government might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another that has a security interest therein, even if legal title is in the creditor pursuant to a conditional
209
sales contract or other security agreement. “Owner” means any person or a government with an interest in property such that it is “property of another” as far as the actor is concerned.
9. “Receiving,” means acquiring possession, control or title, or lending on the security of the property.
10. “Services” means labor, professional service, transportation, telephone, mail or other public service, gas, electricity and other public utility services, accommodations in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other property.
11. “Stolen” means property which has been the subject of theft or robbery or a vehicle which is received from a person who is then in violation of NDCC Section 12.1-23-06.
12. “Threat” means an expressed purpose, however communicated, to:
a. Cause bodily injury in the future to the person threatened or to any other person; or
b. Cause damage to property; or
c. Subject the person threatened or any other person to physical confinement or restraint; or
d. Engage in other conduct constituting a crime; or
e. Accuse anyone of a crime; or
f. Expose a secret or publicize an asserted fact, whether true or false, tending to subject a person living or deceased, to hatred, contempt or ridicule or to impair another’s credit or business repute; or
g. Reveal any information sought to be concealed by the person threatened; or
h. Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or
i. Take or withhold official action as a public servant, or cause a public servant to take or withhold official action; or
210
j. Bring about or continue to strike, boycott or other similar collective action to obtain property or deprive another of his property which is not demanded or received for the benefit of the group which the actor purports to represent; or
k. Cause anyone to be dismissed from his employment, unless the property is demanded or obtained for lawful union purposes; or
l. Do any other act which would not in itself substantially benefit the actor or a group he represents but which is calculated to harm another person in a substantial manner with respect to his health, safety, business, employment, calling, career, financial condition, reputation or personal relationship. Upon a charge of theft, the receipt of property in consideration for taking or withholding official action shall be deemed to be theft by threat regardless of whether the owner voluntarily parted with his property or he initiated the scheme.
13. “Traffic” means:
a. To sell, transfer, distribute, dispense or otherwise dispose of to another person; or
b. To buy, receive, possess or obtain control of, with intent to sell, transfer, distribute, dispense or otherwise dispose of to another person. (Source: NDCC Section 12.1-23-10)
13.0314 Making or Uttering Slugs
1. A person is guilty of an offense if that person makes or utters a slug or slugs which do not exceed fifty dollars ($50.00) in value with intent to deprive a supplier of property or service sold or offered by means of a coin machine or with knowledge that he is facilitating such a deprivation by another person.
2. In this section:
a. “Slug” means a metal, paper or other object which by virtue of its size, shape or any other quality is capable of being inserted, deposited or otherwise used in a coin machine as an improper but effective substitute for a genuine coin, bill or token;
211
b. “Coin machine” means a coin box, turnstile, vending machine, or other mechanical or electronic device or receptacle designed (i.) to receive a coin or bill of a certain denomination or a token make for the purpose; and (ii.) in return for the insertion or deposit thereof, automatically to offer, provide, assist in providing, or permit the acquisition of property or a public or private service.
c. “Value” of the slugs means the value of the coins, bills or tokens for which they are capable of being substituted.
ARTICLE 4 – Offenses Against Public Order, Health, Safety and Sensibilities
Division 1. Riot
13.0401 Engaging in a Riot
1. A person is guilty of an offense if that person engages in a riot.
2. “Riot” means a public disturbance involving an assemblage of five (5) or more persons, which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function. (Source: NDCC Sections 12.1-25-01(2) and 12.1-25-03)
13.0402 Disobedience of Public Safety Orders Under Riot Conditions
A person is guilty of an offense if, during a riot as defined in Section 13.0401-(2) or which when one is immediately impending, he disobeys a reasonable public safety order to move, disperse or refrain from specified activities in the immediate vicinity of the riot. A public safety order is an order designated to prevent or control disorder, or promote the safety of persons or property, issued by the senior law enforcement official on the scene. (Source: NDCC Section 12.1-25-04).
Division 2. Disorderly Conduct
13.0403 Disorderly Conduct
1. An individual is guilty of violating the ordinances of this City, if with intent to harass, annoy or alarm another person or in reckless disregard of the fact that another is harassed, annoyed or alarmed by the individual’s behavior, the individual:
212
a. Engages in fighting or in violent, tumultuous or threatening behavior;
b. Makes unreasonable noise;
c. In a public place, uses abusive or obscene language, or makes an obscene gesture;
d. Obstructs vehicular or pedestrian traffic, or the use of a public facility;
e. Persistently follows a person in or about a public place or places;
f. While loitering in a public place for the purpose of soliciting sexual contact, the individual solicits such contact;
g. Creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose; or
h. Engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. (Source: NDCC Section 12.1-31-01).
13.0404 Defense when Conduct Consists of Constitutionally Protected Activity
Ordinance Section 13.0403 does not apply to constitutionally protected activity. If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim, as a matter of law, and, if found valid, shall exclude evidence of the activity. (Source: NDCC Section 12.1-31-01 (2)).
Division 3. Gambling
13.0405 Gambling
1. It shall be an infraction to engage in gambling.
2. “Gambling” means risking any money, credit, deposit or other thing of value for gain, contingent, wholly or partially, upon lot, chance, the operation of gambling apparatus, or the happening or outcome of an event, including an election or sporting event, over which the person taking the risk has no control. Gambling does not include:
213
a. Lawful contests for skill, speed strength or endurance in which awards are made only to entrants or to the owners of entries; or
b. Lawful business transactions or other acts or transactions now or hereafter expressly authorized by law.
3. “Gambling apparatus” means any devise, machine, paraphernalia or equipment that is used or usable in playing phases of any gambling activity, whether that activity consists of gambling between persons, or gambling by a person involving the playing of a machine. Gambling apparatus does not include an amusement game or device as defined in NDCC Section 53-04-01, or an antique “slot” machine twenty-five (25) years old or older which is collected and possessed by a person as a hobby and is not maintained for the business of gambling.
4. This ordinance shall not apply to gambling or games of chance conducted by a licensee under the authority of a valid license issued by the State of North Dakota.
Division 4. Sexual Offenses
13.0406 Prostitution
1. A person is guilty of the offense of prostitution if that person:
a. Is an inmate of a house of prostitution or is otherwise engaged in sexual activity as a business;
b. Solicits another person with the intention of being hired to engage in sexual activity.
2. Testimony of a person against his or her spouse shall be admissible to prove offenses
under this section involving the spouse’s prostitution.
3. In this section:
a. A “house of prostitution” is any place where a person under the control, management or supervision of another regularly carries on prostitution.
b. An “inmate” is a prostitute who acts as such in or through the agency of a house of prostitution.
214
c. “Sexual activity” means sexual act or sexual contact as those terms are defined in NDCC Section 12.1-20-02. (Source: NDCC Sections 12.1-29-03,04,05)
Division 5. Sunday Business or Labor
13.0407 Business or Labor on Sunday
1. Except as otherwise provided in this section, it is a class B misdemeanor for any person between the hours of twelve midnight and twelve noon on Sunday to engage in or conduct business or labor for profit in the usual manner and location, operate a place of business open to the public, or authorize or direct that person’s employees or agents to take action prohibited under this section. This subsection shall not apply to any person who in good faith observes a day other than Sunday as the Sabbath, if that person refrains from engaging in or conducting business or labor for profit and closes the place of business to the public between the hours of twelve midnight and twelve noon on the day observed as the Sabbath. (Source: NDCC Section 12.1-30-01)
2. Except for items sold at hobby shows, craft show, fairs, exhibits, occasional rummage sales including garage sales or other sales for which a sales tax permit is not required, and tourist attractions that derive at least fifty percent (50%) of their annual gross sales from seasonal or tourist customers, the sale or rental of any of the following items between the hours of twelve midnight and twelve noon on Sunday is prohibited:
a. Clothing other than work gloves and infant supplies;
b. Clothing accessories;
c. Wearing apparel other than that sold to a transient traveler under emergency conditions;
d. Footwear;
e. Headwear;
f. Home, business, office or outdoor furniture;
g. Kitchenware;
h. Kitchen utensils;
i. China;
j. Home appliances;
k. Stoves;
l. Refrigerators;
m. Air conditioners;
n. Electric fans;
o. Radios;
215
p. Television sets;
q. Washing machines
r. Dryers;
s. Cameras;
t. Hardware other than emergency plumbing, heating, cooling or electrical repair or replacement parts and equipment;
u. Tools other than manually driven hand tools;
v. Jewelry;
w. Precious or semiprecious stones;
x. Silverware;
y. Watches;
z. Clocks;
aa. Luggage;
bb. Motor vehicles other than the daily rental of vehicles by business whose sole activity is automobile rental;
cc. Musical instrument
dd. The sale of audio or video recordings, records or tapes. Rental of these items is permitted;
ee. Toys other than those customarily sold as novelties or souvenirs;
ff. Mattresses;
gg. Bed coverings;
hh. Household linens;
ii. Floor coverings;
jj. Lamps;
kk. Draperies;
ll. Blinds
mm. Curtains;
nn. Mirrors;
oo. Cloth piece goods;
pp. Lawnmowers;
qq. Sporting or recreational goods other than those sold or rented on the premises where sports or recreational activities are conducted;
rr. Paint and building and lumber supplies. (Source: NDCC Section 12.1-30-02)
3. Subject to the limitations of this subsection and subsection 2, a business specified in this section may operate in the business' usual manner, location, and for its usual purposes. The businesses authorized under this subsection to operate on Sunday include:
a. Restaurants, cafeterias or other prepared food service organizations;
b. Hotels, motels and other lodging facilities;
216
c. Hospitals and nursing homes, including the sale of giftware on the premises;
d. Dispensaries of drugs and medicines;
e. Ambulance and burial services;
f. Generation and distribution of electric power, water, steam, natural gas, oil or other fuel used as a necessary utility;
g. Distribution of gas, oil and other fuels;
h. Telephone, telegraph and messenger services;
i. Heating, refrigeration and cooling services;
j. Railroad, bus, trolleys, subway, taxi and limousine services;
k. Water, air and land transportation services and attendant facilities;
l. Cold store warehouse;
m. Ice manufacturing and distribution facilities and services;
n. Minimal maintenance of equipment and machinery;
o. Plant and industrial protection services;
p. Industries where continuous processing or manufacturing is required by the very nature of the process involved.
q. Newspaper publication and distribution;
r. Newsstands;
s. Radio and television broadcasting;
t. Motion picture, theatrical and musical performances;
u. Motor vehicle service stations that sell motor fuel and motor oil, and that customarily provide daily repair services or products for any of the following systems or parts of a motor vehicle:
i. Air conditioning system;
ii. Batteries;
iii. Electrical system;
iv. Engine cooling system
v. Exhaust system;
vi. Fuel system;
vii. Tires and tubes;
viii. Emergency work necessary for the safe and lawful operation of the motor vehicle.
v. Athletic and sporting events;
w. Parks, beaches and recreational facilities;
x. Scenic, historic and tourist attractions;
y. Amusement centers, fairs, zoos and museums;
z. Libraries;
aa. Educational lectures, forums and exhibits;
bb. Service organizations (USO, YMCA, etc.);
cc. Coin-operated laundry and dry-cleaning facilities;
dd. Food stores operated by an owner or manager in addition to not more than six employees working in the store at one time
217
on a Sunday; (Note: the City Council of a city may, by ordinance increase the number of employees)
ee. Bait shops for the sale of live bait and fishing tackle;
ff. From April 1st through June 15th, floral nurseries for the sale of bedding plants and nursery stock;
gg. From November 20th through December 24th, Christmas tree stands;
hh. Hobby shows, craft shows, fairs, exhibits;
ii. Occasional rummage sales, including garage sales or other sales for which a sales tax permit is not required;
jj. Community festivals licensed or authorized by the City Council of a city or the board of county commissioners;
kk. Premises licensed to dispense beer and alcoholic beverages within the limits prescribed in NDCC Sections 5-02-05 and 5-02-05.1.
ll. Credit apparel services, lodging and travel reservation services, and, notwithstanding subsection 2, telemarketing of goods and services. (Source: NDCC Section 12.1-30-03)
Division 6. Cruelty to Animals
13.0408 Cruelty to Animals
1. It is an offense for any person to:
a. Overdrive, overload, torture, cruelly beat, neglect or unjustifiably injure, maim, mutilate or kill any animal, or cruelly work any animal when unfit for labor;
b. Deprive any animal over which he has charge or control of necessary food, water or shelter;
c. Keep any animal in any enclosure without exercise and wholesome change of air;
d. Abandon any animal;
e. Allow any maimed, sick, inform or disabled animal of which he is the owner, or of which he has custody, to lie in any street, road or other public place for more than three (3) hours after notice;
f. No person shall willfully instigate, or in any way further, any act of cruelty to any animal or animals, or any act tending to produce such cruelty.
218
g. Cage any animal for public display except as allowed by NDCC Section 36-21.1-02(8);
2. The word “animal” includes every living animal except the human race; the word “torture” or “cruelty” includes every act, omission, or neglect whereby unnecessary or unjustifiable pain, suffering or death is cause or permitted. (Source: NDCC Section 36-21.1-01,02)
Division 7. Alcohol Related Offenses
13.0409 Persons Less than Twenty-One (21) Years Prohibited – Exceptions
1. Any person under twenty-one (21) years of age manufacturing or attempting to manufacture alcoholic beverages, purchasing or attempting to purchase alcoholic beverages, consuming or having recently consumed alcoholic beverages other than during a religious service, being under the influence of alcoholic beverages, or being in possession of alcoholic beverages, or furnishing money to any person for such purchase, or entering any licensed premises where alcoholic beverages are being sold or displayed, except as provided in Subsection 2, is guilty of an offense. The court may, under this Section, refer the person to an outpatient addiction facility licensed by the state department of human services for evaluation and appropriate counseling or treatment. The offense of consumption occurs where consumption takes place or where the offender is arrested. For purposes of this section, possession includes actual or constructive possession. Constructive possession means the power and capability to exercise dominion and control over the alcoholic beverage.
2. Except as permitted in the Section, any licensee who dispenses alcoholic beverages to a person under twenty-one (21) years of age, or who permits such a person to remain on the licensed premises while alcoholic beverages are being sold or displayed, is guilty of an offense, subject to the provisions of NDCC Sections 5-01-08, 5-01-08.1 and 5-01-08.2. Any person under twenty-one (21) years of age may remain in a restaurant where alcoholic beverages are being sold if the restaurant is separate from the room in which alcoholic beverages are opened or mixed and gross sales of food are at official duty. Any person under twenty-one years of age may remain in an area of a site where beer, wine, or sparkling wine is sold in accordance with the conditions of an event permit issued pursuant to NDCC Section 5-02-01.1. Any person who is nineteen years of age or older but under twenty-one years of age may be
219
employed by the restaurant to serve and collect money for alcoholic beverages, if the person is under the direct supervision of a person twenty-one or more years of age, but may not be engaged in mixing, dispensing, or consuming alcoholic beverages. Any establishment where alcoholic beverages are sold may employ persons from eighteen (18) to twenty-one (21) years of age to work in the capacity of musicians under the direct supervision of a person twenty-one (21) or more years of age. (Source: NDCC Sections 5-01-08 and 5-02-08).
13.0410 Misrepresentation of Age – Obligations of Licensee
Any person who shall misrepresent or misstate his age or the age of any other person, or shall misrepresent his age or the age of any other person, or shall misrepresent his age through presentation of any document purporting to show that person to be of legal age to purchase alcoholic beverages is guilty of an offense. Any licensee may keep a book and may require anyone who has shown documentary proof of his age, which substantiates his age to allow the purchase of alcoholic beverages, to sign the book if the age of that person is in question. The book must show the date of the purchase, the identification used in making the purchase and the appropriate numbers of such identification, the address of the purchaser, and the purchaser’s signature. (Source: NDCC Section 5-01-08.1).
13.0411 Bottle Clubs Prohibited
Any person operating an establishment whereby persons are allowed to bring their own alcoholic beverages on the premises where the proprietor sells soft drinks, mix, ice, or charges for bringing such beverages on the premises, are guilty of an offense. (Source: NDCC Section 5-01-10).
13.0412 Public Intoxication – Assistance – Medical Care
A peace officer has authority to take any apparently intoxicated person to the person’s home, to a local hospital, to a detoxification center, or, whenever that person constitutes a danger to himself or others, to a jail for purposes of detoxification. A duly licensed physician of a local hospital has authority to hold that person for treatment up to seventy-two (72) hours. That intoxicated person may not be held in jail because of intoxication more than twenty-four (24) hours. An intoxicated person may not be placed in a jail unless a jailer is constantly present within hearing distance and medical services are provided when the need is indicated. Upon placing that person in a hospital, detoxification center, or jail, the peace officer shall notify the intoxicated person’s family as soon as possible. Any additional costs incurred by the city on account of an intoxicated person shall be recoverable from that person. (Source: North Dakota Century Code Section 5-01-05.1).
220
13.0413 No Prosecution for Intoxication
No person may be prosecuted solely for public intoxication. Law enforcement officers may utilize standard identification procedures on all persons given assistance because of apparent intoxication. (Source: NDCC Section 5-01-05.2).
Division 8. Protection of Minors
13.0414 Objectionable Materials or Performance – Display to Minors-Definitions – Penalty
1. A person is guilty of an offense if he willfully displays at newsstands or any other business establishment frequented by minors, or where minors are or may be invited as a part of the general public, any photograph, book, paperback book, pamphlet, or magazine, the exposed cover or available content of which exploits, is devoted to, or is principally made up of depiction’s of nude or partially denuded human figures posed or presented in a manner to exploit sex, lust or perversion for commercial gain.
2. As used in this section:
a. “Nude or partially denuded human figures” means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernible turgid state even if completely and opaquely covered.
b. “Where minors are or may be invited as a part of the general public” includes any public roadway or public walkway.
c. The above shall not be construed to include a bona fide school, college, university, museum, public library or art gallery. (Source: NDCC Section 12.1-27.1-03.1)
Division 9. Regulation of Minors
13.0415 Curfew, General Regulations – Penalty
221
1. As used in this section, unless the context or subject matter otherwise requires:
a. “Juvenile” for the purpose of this ordinance means a person less than sixteen (16) years of age.
b. “Parents” means the legally appointed father and/or mother, or the natural father and/or mother, or the person or persons in charge of or in control of said juvenile as herein defined including a bona fide employer of said juvenile.
c. “Curfew hour” means the time of night, which is designated as 10:00 o’clock PM, except Friday and Saturday nights, which is 11:00 o’clock PM.
d. “Sounding of the curfew” means the sound emitted by a single blast of the fire siren, sounded at the curfew hour.
2. Each night of the year there shall be a sounding of the curfew at the curfew hour. It shall be unlawful for any juvenile as herein defined to be abroad upon the streets, alleys, public grounds of the City, public places of amusement, or retail or wholesale business establishments, between the curfew hour and 5:00 o’clock AM of the following day unless accompanied by a parent as defined herein. Any juvenile violating this provision of this ordinance, in addition to the other punishments prescribed in this ordinance, shall be detained by the authorities until picked up by parent as defined herein.
It shall be unlawful for any parents to allow their juveniles as herein defined to be abroad upon the streets, alleys, public grounds of the City, public places of amusement, or retail or wholesale business establishments between the curfew hour and 5:00 o’clock AM of the following day unless accompanied by a parent as herein defined.
4. A violation of this section shall be an infraction. Any person, firm, or corporation violating any of the terms or provisions of this article shall, upon conviction thereof, be punished by a fine not to exceed five hundred dollars ($500.00).
ARTICLE 5 – Sentencing
13.0501 Classification of Offenses
222
Offenses against the ordinances of this city are divided into two (2) classes, as follows:
1. Offense, for which a maximum penalty of thirty (30) days imprisonment, a fine of one thousand dollars ($1,000.00), or both, may be imposed.
2. Infraction, for which a maximum fine of five hundred dollars ($500.00) may be imposed. Any person convicted of an infraction who has, within one year prior to commission of the infraction of which he was convicted, been previously convicted of an offense classified as an infraction in state statutes or the ordinances of this or any other North Dakota city may be sentenced as though convicted of an offense. If the prosecution contends that the infraction is punishable as an offense, the complaint shall so specify unless the prosecution is unable with reasonable effort to learn of the prior conviction prior to execution of the complaint.
3. All violations of the provisions of the ordinances of this City are offenses unless specifically labeled infractions or unless a different classification or punishment is specifically authorized.
4. The penalties listed shall not be construed to prohibit the utilization of the sentencing alternatives, other than a fine or imprisonment, provided by NDCC Section 12-1-32-02 and ordinance Section 13.0502, for the violation of a City ordinance, nor does this section limit the use of deferred or suspended sentences.
(Source: NDCC Sections 12.1-32-01 and 40-05-06).
13.0502 Sentencing Alternatives
1. Every person convicted of an offense who is sentenced by the court must be sentenced to one or a combination of the following alternatives, unless the sentencing alternatives are otherwise specifically provided in the statute defining the offense or sentencing is deferred under subsection 4:
a. Payment of the reasonable costs of the person’s prosecution;
b. Probation;
c. A term of imprisonment, including intermittent imprisonment;
d. A fine;
223
e. Restitution for damages resulting from the commission of the offense;
f. Restoration of damaged property or other appropriate work detail;
g. Commitment to an appropriate licensed public or private institution for treatment of alcoholism, drug addiction or mental disease or defect.
h. Commitment to a sexual offender treatment program.
Sentences imposed under this subsection shall not exceed in duration the maximum sentences of imprisonment provided in Section 13.0501 or as provided specifically in an ordinance defining an offense.
This subsection shall not be construed as permitting the unconditional discharge of an offender following conviction. This subsection shall not be construed to prohibit utilization of NDCC Section 40-18-13 relating to suspension of sentence, nor shall this subsection limit the conditions, which can be imposed on a probationer under Sections 13.0507, 13.0508, or 13.0509.
2. Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal.
3. A court may suspend the execution of all or a part of the sentence imposed. The court shall place the defendant on probation during the term of suspension.
4. A court, upon application or its own motion, may defer imposition of sentence. the court must place the defendant on probation during the period of deferment. An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment. In any subsequent prosecution, for any other offense, the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under NDCC Section 12.1-32-07.1.
5. A court may, prior to imposition of sentence, order the convicted offender committed to an appropriate licensed public or private institution for diagnostic testing for such period of time as may be necessary, but not to exceed thirty days. The court may, by
224
subsequent order, extend the period of commitment for not to exceed thirty additional days. The court may also order such diagnostic testing without ordering commitment to an institution. Validity of a sentence must not be challenged on the ground that diagnostic testing was not performed pursuant to this subsection.
6. All sentences imposed must be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement must become part of the record of the case.
7. If an offender is sentenced to a term of imprisonment, that term of imprisonment commences at the time of sentencing, unless, upon motion of the defendant, the court orders the term to commence at some other time. (Source: NDCC Section 12.1-32-02).
13.0503 Procedure for Trial of Infraction
1. Except as provided in this subsection, all procedural provisions relating to the trial of criminal cases as provided in the statutes or rules relating to criminal procedure shall apply to the trial of a person charged with an infraction. A person charged with an infraction is not entitled to be furnished counsel at public expense nor to have a trial by jury pursuant to NDCC Section 40-18-19 unless he may be subject to a sentence of imprisonment under subsection 2 of Section 13.0501.
2. Except as provided in NDCC Title 12.1 or the ordinances of this City, all provisions of law and rules of criminal procedure relating to offenses shall apply to infractions, including, but not limited to, the powers of law enforcement officers, the periods for commencing action and bringing a case to trial, and the burden of proof.
3. Following conviction of an infraction, the offender may be sentenced in accordance with subsection 1 of Section 13.0502, except that a term of imprisonment may not be imposed except in accordance with subsection 3 of Section 13.0506 or subsection 2 of Section 13.0501.
4. If an ordinance provides that conduct is an infraction without specifically including a requirement of culpability, no culpability is required.
5. Except as provided in this section, Sections 13.0501 or 13.0502, or as the context may otherwise indicate differentiation between the infraction classification and the offense classification, the term
225
“offense” refers to all violations of the ordinances of this City including infractions. (Source: NDCC Section 12-32-03.1)
13.0504 Special Sanction for Organizations
When an organization is convicted of an offense, the court may, in addition to any other sentence which may be imposed, require the organization to give notice of its conviction to the persons or class of persons ostensibly harmed by the offense, by mail or by advertising in designated areas or by designated media or otherwise. (Source: NDCC Section 12.1-32-03).
13.0505 Factors to be Considered in Sentencing
The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations regarding the desirability of sentencing an offender to imprisonment.
1. The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his property.
2. The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property.
3. The defendant acted under strong provocation.
4. There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct.
5. The victim of the defendant’s conduct induced or facilitated its commission.
6. The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury, which was sustained.
7. The defendant has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial period of time before the commission of the present offense.
8. The defendant’s conduct was the result of circumstances unlikely to recur.
226
9. The character, history and attitudes of the defendant indicate that he is unlikely to commit another crime.
10. The defendant is particularly likely to respond affirmatively to probationary treatment.
11. The imprisonment of the defendant would entail undue hardship to himself or his dependents.
12. The defendant is elderly or in poor health.
13. The defendant did not abuse a public position of responsibility or trust.
14. The defendant cooperated with law enforcement authorities by bringing other offenders to justice, otherwise cooperated.
Nothing herein shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing. (Source: NDCC Section 12.1-32-04).
13.0506 Imposition of Fine – Response to Non-Payment
1. The court, in making a determination of the propriety of imposing a sentence to pay a fine, shall consider the following factors:
a. The ability of the defendant to pay without undue hardship;
b. Whether the defendant, other than a defendant organization, gained money or property as a result of commission;
c. Whether the sentence to pay a fine will interfere with the defendant’s capacity to make restitution;
d. Whether a sentence to pay a fine will serve a valid rehabilitative purpose.
2. The court may allow the defendant to pay any fine or costs imposed in installments. When a defendant is sentenced to pay a fine or costs, the court shall not impose at the same time an alternative sentence to be served in the event that the fine or costs are not paid.
3. If the defendant does not pay any fine or costs imposed, or make any required partial payment, the courts, upon motion of the prosecuting attorney or on its own motion, may issue an order to
227
show cause why the defendant shows that his default is excusable, the court may, after hearing, commit him to imprisonment until the fine, or costs or both, are fully paid or discharged by labor as provided in NDCC Section 40-18-12.
The court may not commit a person under this section when the sole reason for his nonpayment is his indigence. An order of commitment under this subsection shall not be for a period in excess of thirty (30) days. As used in this subsection, “fine” does not include a fee established pursuant to Section 9.2208 of these ordinances. (Source: NDCC Section 12.1-32-05 and Section 40-11-12)
13.0507 Incidents of Probation
1. Unless terminated as provided in subsection 2, the period during which a sentence to probation shall remain conditional and be subject to revocation is two (2) years.
2. The court may terminate a period of probation and discharge the defendant at any time earlier than that provided in subsection 1 if warranted by the conduct of the defendant and the ends of justice.
3. Notwithstanding the fact that a sentence to probation can subsequently be modified or revoked, a judgment, which includes such a sentence, constitutes a final judgment for all other purposes. (Source: NDCC Section 12.1-32-06.1)
13.0508 Conditions of Probation – Revocation
1. The conditions of probation must be such, as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so. The court shall provide as an explicit condition of every probation that the defendant not commits another offense during the period for which the probation remains subject to revocation.
2. When imposing a sentence to probation, the court may impose such conditions as it deems appropriate, and may include any one or more of the following:
a. Work faithfully at a suitable employment or faithfully pursue a course if study or of vocational training that will equip the defendant for suitable employment;
b. Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose;
228
c. Attend or reside in a facility established for the instruction, recreation or residence of persons on probation;
d. Support the defendant’s dependents and meet other family responsibilities;
e. Make restitution or reparation to the victim of the defendants for the damage or injury, which was sustained, or perform other reasonable assigned work. When restitution, reparation or assigned work is a condition of probation the court shall proceed as provided in Section 13.0509;
f. Pay a fine imposed after consideration of the provisions of Section 13.0506;
g. Refrain from excessive use of alcohol, or any use of narcotics or of another dangerous or abusable drug without a prescription.
h. Permit the probation officer to visit the defendant at reasonable times at the defendant’s home or elsewhere.
i. Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer.
j. Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment.
k. Report to a probation officer at reasonable times as directed by the court or the probation officer.
l. Submit to a medical examination or other reasonable testing for the purpose of deterring the defendant’s use of narcotics, marijuana, or other controlled substance whenever required by a probation officer.
m. Refrain from associating with known users or traffickers in narcotics, marijuana, or other controlled substances.
n. Submit the defendant’s person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant.
229
o. Serve a term of imprisonment of up to one-half of the maximum term authorized for the offense of which the defendant was convicted or one year, whichever is less.
p. Reimburse the costs and expenses determined necessary for the defendant’s adequate defense when counsel is appointed for the defendant. When reimbursement of indigent defense costs and expenses is imposed as a condition of probation, the court shall proceed as provided in subsection 4 of NDCC Section 12.1-32-08.
q. Provide community service for the number of hours designated by the court.
r. Refrain from any subscription to, access to, or use of the Internet.
3. When a defendant is sentenced to probation, the defendant must be given a certificate explicitly setting forth the conditions on which he is being released.
4. The court, upon notice to the probationer may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the period for which the sentence remains conditional. If the defendant violates a condition at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under Section 13.0502 at the time for the initial sentencing.
5. Jurisdiction over a probationer may be transferred from the court that imposed the sentence to another court of this state, with the concurrence of both courts. Retransfer of jurisdiction may also occur in the same manner. The court to which jurisdiction has been transferred under this subsection exercise all powers permissible under this chapter over the defendant. (Source: NDCC Section 12.1-32-07).
13.0509 Restitution or Reparation – Procedures
1. Prior to imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. At or following the hearing, the court shall make determinations as to:
230
a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages must be limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action;
b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property;
c. The likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilitation purpose in the case of the particular offender considered.
The court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance of any condition or conditions of probation established pursuant to this subsection. Any payments made pursuant to such order must be deducted from damages awarded in a civil action arising from the same incident. An order that a defendant make restitution or reparation as a sentence or condition of probation may, unless the court directs otherwise, be filled, transcribed, and enforced by the person entitled to the restitution or reparation in the same manner as civil judgments rendered by the courts of this state may be enforced.
2. The court may order the defendant to perform reasonable assigned work as a condition of probation, which assigned work need not be related to the offense charged, but must not be solely for the benefit of a private individual other than the victim. (Source: NDCC Section 12.1-32-08).
13.0510 Merger of Sentences – Sentencing for Multiple Offenses
1. Unless the court otherwise orders, when a person serving a term of commitment is committed for another offense or offenses, the shorter term or the shorter remaining term shall be merged in the other term. When a person on probation or parole for an offense committed in this city is sentenced for another offense or offenses, the period still to be served on probation or parole shall be merged in any new sentence of commitment or probation. When the court merges sentences under this subsection it shall forthwith furnish the penal facility in which the defendant is confined under sentence with authenticated copies of its sentence, which shall cite the sentences being merged. If the court has imposed a sentence,
231
which is merged pursuant to this subsection, it shall modify such sentence in accordance with the effect of the merger.
2. A defendant may not be consecutively sentenced to more than one year. (Source: NDCC Section 12.1-32-11).
ARTICLE 6 – Penalties
Any person who is convicted of violating or of failing to comply with any of the provisions of the ordinances contained in this chapter for which a penalty is not specifically set forth, may be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment not to exceed thirty (30) days, or both. (Source: NDCC Section 40-05-06)
232
CHAPTER FOURTEEN
FRANCHISE
ARTICLE 1 – Grant of Franchises
14.0101 Power to Grant
14.0102 Compliance with Applicable Laws and Ordinances
14.0103 Indemnification
14.0104 Insurance
14.0105 Ordinance Granting to Midcontinent Cable Systems Co. of North Dakota the Nonexclusive Right to Erect, Maintain and Operate In, Under, Over, Along, Across the Streets, Lanes, Avenues, Sidewalks, Alleys, Bridges, Highways, Easements Dedicated for Compatible Uses and Other Public Places in the City of Center, North Dakota, and the Subsequent Additions Thereto, Towers, Poles, Lines, Cables, Wires and Other Apparatus for the Purpose of Transmission and Distribution by Cable or Television Signals to Enable Sale of its Community Television Antenna Service to Inhabitants of Said City and Other Various Purposes, and Regulating the Same and Providing for Compensation of the City
233
CHAPTER FOURTEEN
FRANCHISE
ARTICLE 1 – Grant of Franchises
14.0101 Power to Grant
The City Council may grant to any person, firm, partnership, association, corporation, company or organization of any kind a franchise or special right or privilege to operate or do business in the City, but such franchise shall be subject to the provisions of this article. (Source: NDCC Section 40-05-01- (57))
14.0102 Compliance with Applicable Laws and Ordinances
The grantee of any franchise during the life of the franchise shall be subject to all lawful exercise of the police power of the City, and to such reasonable regulation, as the City shall by resolution or ordinance provide.
14.0103 Indemnification
The grantee of any franchise shall indemnify and save the City and its agents and employees harmless from any and all claims for personal injury or property damages and any other claims, costs, including attorney’s fees, expenses of investigation and litigation of claims and suits thereon which may result from the activities of the grantee of the franchise in the City.
14.0104 Insurance
Any grantee of a franchise by the City shall carry and keep in force a public liability policy of insurance, insuring the grantee of the franchise and the City against any and all liability, of not less than two hundred fifty thousand dollars ($250,000.00) for any one person, property damage, personal injury, or death, and five hundred thousand dollars ($500,000.00) for any one accident resulting in property damage, personal injury, or death. The City may demand proof of such insurance coverage in an insurance company licensed to do business in the State of North Dakota. (Source: NDCC Section 32-12.1-03)
234
14.0105 Ordinance Granting to Midcontinent Cable Systems Co. of North Dakota the Nonexclusive Right to Erect, Maintain and Operate In, Under, Over, Along, Across the Streets, Lanes, Avenues, Sidewalks, Alleys, Bridges, Highways, Easements Dedicated for Compatible Uses and Other Public Places in the City of Center, North Dakota, and the Subsequent Additions Thereto, Towers, Poles, Lines, Cables, Wires and Other Apparatus for the Purpose of Transmission and Distribution by Cable or Television Signals to Enable Sale of its Community Television Antenna Service to Inhabitants of Said City and Other Various Purposes, and Regulating the Same and Providing for Compensation of the City
A. Statement of Purpose
The purpose of this Ordinance is to effectuate the City’s award of a franchise to Midcontinent Cable System on the 30th day of December, 1986, and to establish the terms and conditions governing the franchise and regulation thereof.
B. Definitions
For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive, words not defined shall be given their common and ordinary meaning.
1. “Basic Cable Service” means the service tier which includes the retransmissions of local broadcast signals.
2. “Channel” shall mean a portion of the electromagnetic frequency spectrum which is used in a cable system and is capable of delivering a television channel (as television channel is defined by FCC regulations).
3. “The City” is the City of Center, North Dakota.
4. “Council” is the City Council of Center, North Dakota.
5. “Cable Television System” or “Cable System” is a system utilizing certain electronic and other components which
235
deliver subscribing members of the public various communications services.
6. “Cable Television Reception Service” means the delivery by the company to television receivers (or any other suitable type of electronic terminal or receiver of the electronic signals) and other communication services carried over said system.
7. “FCC” shall mean Federal Communications Commission.
8. “Franchise” shall mean the rights and obligations extended by the City to company herein.
9. “Company” is Midcontinent Cable Systems Co. of North Dakota or anyone who succeeds Midcontinent Cable Systems Co. of North Dakota in accordance with the provision of this Ordinance.
10. “Ordinance” shall mean this Ordinance No. 05-01 of the City of Center.
11. “Person” is any person, firm, partnership, association, corporation or organization of any kind and any other legally recognized entity.
12. “Public property” shall mean any real property owned by the City or any other governmental unit, other than a street.
13. “Street” shall mean the surface of and the space above and below any public street, road, cartway, highway, freeway, land, path, public way, alley court, sidewalk, boulevard, parkway, drive, or any easement of right-of-way now or hereafter held by the City or any easements for compatible uses within the City.
14. “Subscribers” are those persons contracting to receive cable television reception services furnished under this Ordinance by company.
C. Grant of Non-Exclusive Authority
There is hereby granted by the City to the Company, and to its successors, assigns or designees, the non-exclusive right to erect, maintain and operate in, under, over, along, across and upon the present and future streets, lanes, avenues, sidewalks, alleys, bridges, highways, easements dedicated for
236
compatible uses and other public places within the City, and subsequent additions thereto, towers, poles, lines, cables, wires, manholes and all other fixtures and equipment necessary for the maintenance and operation in the City of a cable television system, for the purpose of transmission and distribution of audio, visual, electronic and electric impulses in order to furnish television and radio programs and various other communications services to the public by what is commonly called a Community Antenna Television System, for a period of fifteen (15) years, commencing from and after the effective date of this Ordinance.
D. Compliance with Applicable Laws and Ordinances
The Company shall, during the term hereof, except in those areas which have been preempted by the Cable Communication Policy Act of 1984 or which are regulated by the Federal Communications Commission, be subject to all lawful exercise of the regulating and police powers of the City.
E. Territorial Area Involved
This Ordinance relates to the present territorial limits, the City and to any area annexed thereto during the term of this Ordinance. Company shall not be required to service residents, newly annexed areas of the City that are beyond four hundred feet (400’) from existing distribution lines except upon payment by such residents of the capital costs incurred by the Company bringing service to such residents. Company shall evaluate each of its proposal for furnishing service and the terms for repayment of the cost of furnishing such service. Company may but shall not be required to, serve areas or individual homes adjoining, but outside the City limits, that may be served from its existing facilities. Company may negotiate directly with such customers the amount to be charged for the bringing of the service to the customers.
F. Liability and Indemnification
1. Company shall, at all times, keep in effect the following types of insurance coverage:
a. Workmen’s Compensation upon its employees engaged in any manner in the installation or servicing of its plant and equipment within the City of Center, North Dakota.
b. Property Damage Liability insurance to the extent of Two Hundred Fifty Thousand Dollars ($250,000.00) as to each occurrence and Two Hundred Fifty Thousand Dollars ($250,000.00) aggregate, and personal injury liability insurance to the extent of Five Hundred Thousand Dollars ($500,000.00) as to each occurrence and Five Hundred
237
Thousand Dollars ($500,000.00) aggregate. Excess bodily injury and property damage of One Million Dollars ($1,000.000.00) aggregate. Automobile bodily injury and property damage liability combined One Million Dollars ($1,000.000.00) each occurrence.
2. Company shall indemnify, protect, and save harmless the City from and against losses and physical damage to property and bodily injury or death to persons, including payments made under any Workmen’s Compensation law which may arise out of the erection, maintenance, presence, use or removal of said attachments or poles within the City, or by any act of Company, its agents or employees. Company shall carry insurance in the above described amounts to protect the parties hereto from and against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of such loss, injury or damage. Company shall also carry such insurance as it deems necessary to protect it from claims under the Workmen’s Compensation laws in effect that may be applicable to Company. All insurance required shall be and remain in full force and effect for the entire life of the rights granted hereunder. Insurance certificates evidencing such insurance coverage shall be deposited with and kept on file by the City.
3. These damages or penalties shall include, but shall not be limited to, damages arising out of copyright, infringements, and all other damages arising out of the installation, operation, or maintenance of the Cable Television system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this Ordinance.
G. General System Specifications
The facilities used by the Company shall have a minimum capacity of 21 channels. The facilities shall also be capable of distributing color television signals, and when the signals the Company distributes are received in color, they shall be distributed in color when technically feasible.
H. Technical Standards
1. Company shall be governed by technical standards established by the FCC.
2. Company’s methods and schedules for testing the System shall be in compliance with the reasonable standards accepted in the industry.
238
I. Operation and Maintenance of System
1. The Company shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest possible time. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. A record shall be maintained for all service interruptions and said record shall, upon reasonable notice, be made available to the City Auditor.
2. A toll-free or collect telephone number for the reception of complaints shall be provided to subscribers and Company shall maintain a repair service capable of responding to subscriber complaints or requests for service within 24 hours exclusive of Sundays and holidays, after receipt of the complaint or request. Company shall investigate and resolve all complaints regarding quality of service, equipment malfunction, billing disputes and other matters pursuant to the procedure set forth in this Ordinance. Company will bear the costs included in making such repairs, adjustments or installations unless Company deems such repairs necessary due to neglect or abuse by the subscriber. All costs for repairs necessary due to neglect or abuse by the subscriber shall be borne by the subscriber.
3. Company shall maintain a toll free longs distance number to its business office and shall maintain regular office hours and emergency twenty-four answering service for the purpose of responding to billings complaints. Service requests involving a loss of service affecting more than one subscriber on the same feeder line will be dealt with as soon as possible. All other complaints relating to service shall be, if possible, rectified within one (1) day, exclusive of Sundays and holidays.
4. Company shall furnish each subscriber at the time service is installed, written instructions that clearly set forth procedures, for making inquiries or complaints, including the name, address and telephone number of the office to which such inquiries or complaints are to be addressed.
5. Upon taking over the existing System, Company shall have a reasonable time to re-map the System. Company shall thereafter, upon request, provide City a current map or set of maps drawn to scale, showing all System equipment installed and in place in streets and other public places.
239
J. Service to Schools and City
1. The Company shall, subject to the line extension provision of Section 14.0105(E), provide basic cable service at no cost to public and parochial elementary and secondary schools within the City, at one terminal junction for educational purposes upon request of the school system.
2. Company shall, subject to the line extension provision of Section 14.0105(E), also provide to the City without charge at one City owned building other than a hospital, nursing home, apartment or building at the airport, to be selected by the Council of Center, one junction terminal to said building and shall also furnish to the building, without charge, basic service to all sets connected within such building to the terminal junction.
3. The Company shall allocate one channel to the City as a public, educational or government access channel. Until such time as the City files a written request with Company for full-time use of the channel, Company shall have the right to use that portion of the channel capacity that is not being used by the City. Company shall have a reasonable period of time after notification to vacate its use of the channel. Company shall assist the City in obtaining the necessary licenses and frequency clearance to enable the City to use said channel.
K. Emergency Use of Facilities
In the case of any emergency or disaster, the Company shall, upon request of the City Council, make available its facilities to the City for emergency use during the emergency or disaster. If the City wishes to operate a Civil Emergency Alert System on a plan that is mutually acceptable to the City and Company and provides Company with the necessary equipment for such system, Company will permit the system to be used on the cable system.
L. Safety Requirements
The Company shall, at all times, employ ordinary care and shall use and maintain commonly accepted methods and devices for preventing failures and accidents which are likely to cause damages, injuries or nuisances to the public.
M. Limitations on Rights Granted
1. All transmission and distribution structures, lines and equipment erected by the Company within the City shall be so located as to cause minimum interference with the proper use of streets, alleys
240
and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places, and said poles or towers shall be removed by company whenever the City Public Works Superintendent or Engineer reasonably finds that the same restrict or obstruct the operation or location of any future streets or public places in the City of Center, North Dakota.
2. Construction and maintenance of the transmission distribution system shall be in accordance with the provisions of the National Electrical Safety Code, prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, and such applicable Ordinances and regulations of the City of Center, North Dakota, affecting electrical installation, which may be presently in effect, or changed by future ordinances.
3. In case of disturbance of any street, sidewalk, alley, public way, or paved area, the Company shall, at its own cost and expense and in manner approved by the City Public Works Superintendent or Engineer, replace and restore such street, sidewalk, alley, public way, or paved areas in as good a condition as before the work involving such disturbance was done. Company shall not be required to pay a fee for street openings.
4. If at any time during the period of this Ordinance the City shall lawfully elect to alter or change the grade of any street, sidewalk, alley, or other public way, the Company, upon reasonable notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
5. The Company shall, on the request of any person holding a building moving permit issued by the City or any person who wishes to remove trees or structures from their property, temporarily raise or lower its wires to permit the moving of buildings or tree removal. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the Company shall have the authority to require such payment in advance. The Company shall be given no less than forty-eight (49) hours advance notice to arrange for such temporary wire changes.
6. The Company shall have the authority to trim trees upon the overhanging streets, alleys, sidewalks and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company, except that at
241
the option of the City, such trimming may be done by it or under its supervision and direction at the expense of the Company.
7. Company shall, at its expense, protect, support, temporarily disconnect, relocate on the same street, alley or public place, or remove from the street, alley or public place, any property of Company when required by the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishments of street grade, installation of sewers, drains, waterpipes, power lines, signal lines, and tracks or any other types of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or other structure of public improvement; provided, however, that Company shall in all cases have the privileges and be subject to the obligations to abandon any property of Company in place as hereinafter provided.
8. In all sections of the City where the City designates an area where all presently above ground services to be placed underground, the Company shall place its wires underground on the same time schedule and on the same conditions that are applicable to the providing of other above ground services in the designated areas.
9. In the event that the use of any part of the system is discontinued for any reason for a continuous period of twelve (12) months, or in the event such systems or property has been installed in any street or public place without complying with the requirements of this Ordinance, or the rights granted hereunder have been terminated, cancelled or have expired, Company shall, subject to the rights of the City to acquire or transfer the system, promptly remove from the streets, or public places all such property and poles of such system other than any which the City may permit to be abandoned in place. In the event of such removal, Company shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the City.
10. Any property of Company to be abandoned in place shall be abandoned in such a manner as the City may prescribe. Upon permanent abandonment of the property of Company in place, it shall submit to the City an instrument to be approved by the City, transferring to the City the ownership of such property.
11. Nothing in the Franchise shall be construed to prevent the City from constructing sewers, grading, paving, repairing and/or altering any street, or laying down, repairing or removing water mains, or constructing, or establishing any other public work. All such work
242
shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of Company.
12. If any such property of Company herein shall interfere with the construction or repair of any street or improvement, thirty days notice shall be given to Company by City and all such poles, wires, conduits, or other appliances and facilities shall be removed or replaced by Company in such manner as shall be directed by City so that the same shall not interfere with the said public work of City, and such removal or replacement shall be at the expense of Company herein.
N. Ownership and Removal of Facilities
All cable and passive equipment for cable television reception service installed by Company at a subscriber’s location shall remain the property of Company and Company shall have the right to remove said cable and equipment. Upon termination of service to any subscriber, the Company shall promptly remove all its above ground facilities and equipment from the premises of such subscriber upon his request.
O. Transfer of Ordinance
The Company shall not assign this ordinance to another person without prior approval of the City Council, which approval shall not be unreasonable withheld.
P. Payment to the City
1. During the term of the rights granted hereunder, and so long as the Company operates said system, the Company shall pay, as compensation to the City in 1987 and 1988 a sum equal to two percent (2%) of the annual total gross receipts of the cable system and thereafter the rate shall be three percent (3%) unless changed by the City as hereinafter prescribed. Under the Cable Communications Policy Act of 1984, the City may increase the fee to a maximum of five percent (5%) of the gross receipts. If the City at any time after 1988 elects to increase the fee above three percent (3%), the increase will be passed on to the subscribers and will be separately noted on the billing statement. “Gross Receipts” shall consist of those revenues derived from the monthly service charges paid by subscribers for basic cable service and premium pay services, such as Showtime. Gross receipts shall not include revenues received as installation charges, and fees for
243
reconnections, inspections, repairs, or modifications of any installation or State and Federal taxes relating thereto.
2. The payments that Company makes to the City shall be in lieu of any occupation tax, license tax, or similar levy by the City and shall be paid on a monthly basis based on the preceding year’s gross subscriber revenues. Upon completion of Company’s audit, Company shall pay to the City within 15 days, the balance due, if any, for the operating year covered by the audit as shown by the statement of Company’s auditor.
This amount payable by the Company to the City shall be the sole amount payable for all of its rights under this Ordinance including, but not limited to, the use of the streets and other facilities of the City in the operation of the Cable System and for the municipal supervision thereof and shall be in lieu of any other occupational tax.
3. Notwithstanding the annual gross receipts fee or tax payable hereunder, if the Company is legally obligated to collect or pay any sales tax or other taxes, the Company shall have the right to charge the subscribers an additional amount equal to such tax.
4. No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this Ordinance. The Company’s gross receipts as defined in Section 14.0105(P)(1) and its subscriber records shall be subject to audit and recomputation by the City.
Q. Duration and Renewal of Ordinance
The rights granted to Company herein shall, except as provided in this Section, terminate twenty-five (25) years from July 1, 1996, which Ordinance and franchise shall be subject to renewal pursuant to the provisions of the Cable Communications Policy Act of 1984 applicable to new ordinances that are in the nature of a franchise. Pending final completion of renewal proceedings, the Ordinance and franchise shall remain in effect even if the original twenty-five (25) year term has expired. If this Ordinance and franchise are not renewed or if it is revoked for cause by the City, the transfer of Company’s system shall be governed by Section 627 of the Cable Communications Policy Act of 1984.
R. Erection, Removal and Common Use of Poles
244
1. No poles or other wire-holding structures shall be erected by the Company without prior approval of the designated representative of the City Council with regard to locations, height, type or any other pertinent aspect, which approval shall not be unreasonably withheld. However, no locations of any pole or wire-holding structure of the Company shall be a vested interest and such poles or structures shall be removed or modified by the Company at its own expense whenever the City Council or its designated representative determines that the public convenience would be enhanced thereby.
2. Where poles or other wire-holding structures already existing in use in serving the City are available for use by Company, but it does not make arrangements for such use, the City Council may require the Company to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Company are just and reasonable.
3. Where the City or a public utility serving the City desired to make use of poles or other wire-holding structures of the Company cannot be reached, the City Council may require the Company to permit such use for such consideration as is just and reasonable and upon such terms as the Council determines the use would enhance the public convenience and would not unduly interfere with the Company’s operations.
S. Rates
1. Company shall at all times maintain on file with the City Auditor a schedule setting forth all rates and charges to be made to subscribers for basic CATV service, including installation charges.
2. During the term hereof, the City may regulate rates only if authorized by Federal Law to do so or by Federal Communications Commission regulations and then such regulation shall only be in accordance with the provisions of such law or regulations.
3. In the event that the City has authority to regulate rates, the following procedures shall be used:
a. Before making any changes in the rates and charges to subscribers for basic CATV service, Company shall file in writing with the City Auditor a new proposed rate change at least thirty (30) days in advance of the proposed effective date for such rate change. If the City takes no action to set
245
the proposed rate change for hearing, said proposed rate changes shall become effective upon the expiration of the 30-day notice period.
b. If the Council wishes to hold a hearing on the proposed rate increase, the hearing shall be held within forty-five (45) days of the filing of the proposed rate increase by the Company. Following the hearing, the Council shall take final action on the proposed increase within thirty (30) days.
4. Any rate subject to regulation under the above provisions may be increased without the approval of the City, at the discretion of Company by an amount not to exceed five percent (5%) per calendar year. In addition, Company shall have the right to pass along to subscribers state and local sales taxes, programming cost increases and copyright fee increases.
5. The monthly rate set forth in subsection 1 above shall be payable in advance.
6. The Company shall not discriminate in rates between customers of the same category except to the extent permitted by the Cable Communications Policy Act of 1984 and Federal Communications Commission regulations.
T. Miscellaneous
1. Company’s technical ability, financial condition, and legal qualifications, were considered and approved by the Council in a full public proceeding which afforded reasonable notice and a reasonable opportunity to be heard.
2. Complaints regarding the quality of service, equipment malfunctions and similar matters shall first be directed to Company’s office. Should Company fail to satisfy a Complaint, it may then be directed to the Auditor for investigation. The complaining party and Company shall be afforded a reasonable opportunity to present written statements of their position. The Auditor shall attempt to resolve the Complaints and, if this cannot be achieved, he or she shall submit a recommendation to the City Council, which shall either (1) dismiss the Complaint, or (2) specify corrective steps to be taken by Company. Approval from the Council’s action may be made to the appropriate judicial or administrative forum.
246
U. Modification of Obligations
In addition to any other remedies provided by law or regulation, Company’s obligations under this Ordinance may be modified, at its request, in accordance with Section 625 of Cable Communications Policy Act of 1984 as it now exists, or as hereinafter amended.
V. Revocation
1. City’s Right to Revoke. City reserves the right, in its sole discretion, to terminate and cancel the Franchise and all rights and privileges of the Franchise in the event;
a. Company violates any material provision of the Franchise;
b. Company practices any fraud or deceit upon City;
c. Company is adjudged bankrupt;
d. Company misrepresents a material fact in the application for, negotiation of or administration of the Franchise.
2. Procedures for Revocation and Termination.
a. City shall provide Company with a written notice of the cause for termination and its intention to terminate the Franchise and shall allow the Company a minimum of thirty (30) days after service of the notice I which to correct the violation.
b. Company shall be provided with an opportunity to be heard at a public hearing before the City Council prior to the termination of the Franchise. The City shall hear any persons interested therein, and shall determine whether or not any failure, refusal, or neglect to correct the violation by the Company was without reasonable cause.
c. If such failure, refusal, or neglect by Company to comply within such times was with reasonable cause, City shall direct Company to comply within such time and manner and upon such terms and conditions as are reasonable.
d. If City shall determine such failure, refusal, or neglect by Company was without reasonable cause, then City may, by Resolution, declare that the Franchise of Company shall be terminated unless there is compliance by Company within such reasonable period as City may fix.
247
W. Foreclosure and Receivership
1. Foreclosure. Upon the foreclosure or other judicial sale of all or a part of System, Company shall notify City of such fact an such notification shall be treated as a notification that a change in control of Company has taken place, and the provisions of the Franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer of change in ownership occurred.
2. Receivership.
a. City shall have the right to cancel the Franchise one hundred twenty (120) days after appointment of a receiver or trustee to take over and conduct the business of Company, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
1. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of the Franchise and remedied all defaults thereunder; and
2. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement duly approved by the Court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the Franchise.
b. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the Company, or any part thereof, City may serve notice of termination upon the Company and the successful bidder at such sale, in which event the Franchise herein granted and all rights and privileges of the Company hereunder shall cease and terminate thirty (30) days after service of such notice, unless:
1. City shall have approved the transfer of this Franchise; and
2. Such successful bidder shall have covenanted and agreed with City to assume and be bound by all the terms and conditions of this Franchise.
248
X. Severability
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court or competent jurisdiction, or is superseded or preempted by Federal Communications Commission regulation, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.
Y. Written Notice
All notices, reports, or demands required to be given in writing under the Franchise shall be deemed to be given when delivered personally to any officer of Company or City, or when forty-eight (48) hours have elapsed after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid, addressed to the party to which notice is being given, as follows:
If to Company: Midcontinent Cable Systems Co. of North Dakota
P.O. Box 910
Aberdeen, SD 57402-0910
If to City: City Auditor
City of Center
P.O. Box 76
Center, ND 58530
Such addresses may be changed by either party upon notice to the other party given as provided in this section.
Z. Acceptance
1. Acceptance Procedure.
a. Company shall accept the Franchise within thirty (30) days of the effective date of this Ordinance unless the time is extended by the City. Upon acceptance of the Franchise, Company shall be bound by all its terms and conditions.
b. With its acceptance, Company shall deliver to City true and correct copies of its Articles of Incorporation and corporate resolution authorizing the acceptance of the Franchise. Such resolution shall describe the officers authorized to execute the acceptance on behalf of Company.
249
c. All insurance certificates required of Company by the Franchise shall be delivered with the acceptance, unless the time for delivery is extended by City.
d. In the event the Franchise is not accepted by Company within thirty (30) days of the effective date of this Ordinance, the Franchise shall, at the option of the City, be declared void, and if so declared, City shall have no further obligations to Company and Company shall have no claim in law or equity against City nor shall the City have any claims against Company.
250
CHAPTER FIFTEEN
BUILDING CODE
ARTICLE 1 – General Building Code
15.0101 Adoption of Code
15.0102 Amendments, Deletions, Additions to Code
15.0103 Clarification of Code
15.0104 Fees
251
CHAPTER FIFTEEN
BUILDING CODE
ARTICLE I – General Building Code
15.0101 Adoption of Code
The erection, construction, enlargement, alteration, repair, moving, removal, demolition, conversion, occupancy, equipment, uses, height, area and maintenance of buildings or structures in the City shall meet with the provisions of the rules and regulations of the North Dakota State Building Code and any future updates and amendments to that code, a copy of which is on file with the City Auditor. That code is hereby adopted and made a part of this chapter by reference with the exception of the following sections affecting local conditions in the City.
15.0102 Amendments, Deletions, Additions to Code
Amendments, deletions, or additions to the code may be made from time to time by the City Council by amendment of this Ordinance.
15.0103 Clarification of Code
For the purpose of clarifying the Building Code adopted above:
1. “Municipality” or “City” shall mean the City of Center.
2. Any reference to fire limits within the City shall mean the fire limits set out in Chapter Four.
15.0104 Fees
Fees under the Building Code shall be as follows:
(Note: A suggested building permit fee schedule can be found in the North Dakota State Building Code. For the current version, contact the North Dakota Division of Community Services.)
252
CHAPTER SIXTEEN
ELECTRICAL CODE
ARTICLE 1 - Adoption of Electrical Code
16.0101 Electrical Code Adopted
ARTICLE 2 - Permits
16.0201 Permit Required
16.0202 Permit - Application for
16.0203 Permit - Grant of
16.0204 Work by Licensed Electrician
16.0205 Work by Licensed Electrician - When Not Required
16.0206 Uses of License by Another
16.0207 Return of Permit - Work Completed
16.0208 Inspection of Work
ARTICLE 3 - Supervision of Work
16.0301 Supervision of Work
16.0302 Powers
16.0303 Existing Installations
16.0304 Defective Work
253
CHAPTER SIXTEEN
ELECTRICAL CODE
ARTICLE 1 – Adoption of Electrical Code
16.0101 Electrical Code Adopted
There is hereby adopted the rules for electrical wiring and equipment as adopted by the State Electrical Board and any future updates, and amendments to those rules, a copy of which is on file in the office of the City Auditor of the City, and the same is hereby adopted as fully as if it were set out at length herein with the following exceptions: None at the time of adoption of this Ordinance.
ARTICLE 2 – Permits
16.0201 Permit Required
No person shall begin any electrical work for which a permit is required until that person has made application for a permit to the city building inspector or City Auditor and the permit has been granted. All electrical work shall be performed in strict compliance with the laws of the State of North Dakota, and the provisions of this article, together with such rules and regulations as the City shall make from time to time for the execution of the same.
16.0202 Permit - Application For
Any person desiring to perform any electrical work within the corporate limits shall make application for a permit to carry on such work. Application shall be in a form containing such information regarding the proposed work, as the City shall prescribe.
16.0203 Permit - Grant of
When, after due consideration and examination, it appears that the provisions of this article are complied with, the permit asked for shall be issued.
16.0204 Work by Licensed Electrician
All electrical work hereafter to be installed in any building within the corporate limits, shall be undertaken and executed only by persons holding a master electrician’s license or a Class B electrician’s license where applicable as provided in the laws of the State of North Dakota, and have given a surety bond in the sum of one thousand ($1,000.00) Dollars approved by the City Council, for
254
the execution of all work in conformity with the laws of the State of North Dakota, and the provisions of this article.
16.0205 Work by Licensed Electrician - When Not Required
No permit or application for a permit shall be required for the installation of electrical wiring for electrical installations made upon their own property by public service corporations, which hold franchises from the City for the manufacture and distribution of electric power.
16.0206 Uses of License by Another
No person holding a master electrician’s license or a Class B electrician’s license shall allow the use of his name, or any permit granted to him, by any other person.
16.0207 Return of Permit – Work Completed
Within five (5) days after the completion of any electrical work, the permit under which the work was executed shall be returned by the holder thereof to the city inspector or City Auditor with a notation thereon of such completion.
16.0208 Inspection of Work
Upon completion of the work, which has been authorized by the issuance of an electrical permit, it shall be the duty of the master electrician to request an inspection of his work by the city inspector. Such inspection shall be requested and conducted before the electrical work is covered by other building components.
In a case where such work includes a new or altered electrical service, the utility company shall not make any connection unless the service entrance bears a notice signed by the city inspector that said wiring has been inspected and approved by the city inspector.
ARTICLE 3 – Supervision of Work
16.0301 Supervision of Work
All electrical installations now existing or hereafter to be made, altered or repaired in or upon any building in the City shall be under the supervision of the city inspector who shall require such work to comply with this article and City ordinances. (NOTE: NDCC 43-09-13.2 requires a person employed by the City to inspect electrical installations to be licensed as a journeyman or master electrician.)
255
16.0302 Powers
The city inspector shall have the right during reasonable hours to enter any building in the discharge of duties, or for the purpose of making any inspection or test of the electrical installation or electrical equipment contained therein, and is hereby empowered to disconnect or order the discontinuance of electrical service to any electric wiring or equipment found to be defectively installed or otherwise not in conformity with the provisions of this article or equipment shall have been made safe.
16.0303 Existing Installations
All existing electrical installations and devices on any premises or upon any building or structure in the City shall be subject to inspection by the city inspector and if in the opinion of the city inspector a hazard exists the owner shall be notified with an order requiring that the hazard be corrected. In the case where the owner fails to comply with the city inspector’s order, the service to the premises, structure or building shall be disconnected.
16.0304 Defective Work
The inspector is hereby given authority to order the removal and replacement, or the alteration of any installation or portion thereof for which a permit has been obtained, should be upon inspection of the same find it to have been executed in violation of any of the provisions of this article. It shall thereafter be unlawful for any person in any way to use such installation, or to supply the power thereto, until the same shall have been made to conform to the provisions of this article. No permit for any other work shall be issued to any applicant therefore who has executed any work in violation of the provisions of this article until such work shall have been made to conform thereto.
256
CHAPTER SEVENTEEN
PERSONNEL POLICIES
ARTICLE 1 – Personnel Policies and Procedures
17.0101 Adoption of Policies
17.0102 Amendments to Policies
257
CHAPTER SEVENTEEN
PERSONNEL POLICIES
ARTICLE 1 – Personnel Policies and Procedures
17.101 Adoption of Policies
The personnel policies and procedures of the City shall be as set out in the City Personnel Policy Manual, a copy of which is on file with the City Auditor. Those policies are hereby adopted and made a part of this chapter by reference.
17.0102 Amendments to Policies
Amendments, deletions or additions to the City Personnel Policy Manual may be made from time to time by resolution of the City Council.
258
CERTIFICATE
STATE OF NORTH DAKOTA )
) ss.
COUNTY OF OLIVER )
The undersigned City Auditor of the City of Center, hereby certifies to be the City Auditor of the City of Center, and as such is the custodian of the Ordinance Book of the City;
It is further certified that the foregoing is a true and accurate copy of the revised ordinances of 2005, duly enacted by the City Council of the City of Center,
the first reading which was had on ________________________
and the second reading and final passage had at the regular meeting held on __________________________ and passed on a roll call vote as shown in the records kept of said meeting.
Dated this _____ day of ____________________, 20___.
________________________________
Ellen Lange
City Auditor
City of Center, North Dakota
259