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2006D59-Traffic Devices 06-D-59 ORDINANCE NO. AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, AMENDING CHAPTER 86, ARTICLE III OF THE CODE OF ORDINANCES OF THE CITY, TRAFFIC AND MOTOR VEHICLES, TRAFFIC CONTROL DEVICES, TO ADD SECTIONS 86-94 THROUGH 86-100, PHOTOGRAPHIC TRAFFIC ENFORCEMENT SYSTEM, ESTABLISHING A PHOTOGRAPHIC TRAFFIC ENFORCEMENT SYSTEM; ESTABLISHING CERTAIN DEFENSES AND PENALTIES; PROVIDING A NONJUDICIAL ADMINISTRATIVE HEARING PROCESS WITH APPEAL TO THE MUNICIPAL COURT; SEVERABILITY; REPEAL OF CONFLICTING ORDINANCES; AND AN EFFECTIVE DATE WHEREAS, the City Council (the "City Council") of the City of Schertz, Texas (the "City") seeks to promote the health, safety, and welfare of the citizens of the City; and WHEREAS, pursuant to Texas Local Government Code Section 51.001, as amended, the City has authority to adopt ordinances that are for the good government, peace, or order of the municipality and that are necessary to carry out powers granted to the City; and WHEREAS, pursuant to Texas Local Government Code Section 54.004, as amended, and the City's Charter, the City may enforce ordinances necessary to protect health, welfare, safety, and property and to preserve the good government, order, and security of the City and its inhabitants; and WHEREAS, pursuant to the Texas Constitution, Article XI, Section 5, and Texas Local Government Code Section 51.072, as amended, the City, as a home-rule municipality, has full power of local self-government; and WHEREAS, Texas Transportation Code Section 542.202, as amended, authorizes municipalities to, among other things, regulate traffic by traffic-control devices through criminal, civil, and administrative enforcement methods; and WHEREAS, there is convincing documented evidence that the problem of motorists running red lights is a growing problem resulting in injuries, fatalities, and loss of property; and WHEREAS, the City Council fmds that a motor vehicle that proceeds into an intersection when the traffic control signal for that vehicle's direction of travel is emitting a steady red signal endangers motor vehicle operators and pedestrians, decreases the efficiency of traffic control and traffic flow efforts of the City, and increases the number of accidents to which public safety agencies must respond at the expense of taxpayers; and WHEREAS, the City Council finds that there is a high incidence of drivers in the City disregarding red lights at street intersections; and WHEREAS, the City finds that certain intersections are high volume and high crash intersections; and 20160826.2 WHEREAS, the City's concern over traffic accidents and related fatalities resulting from motorists running red lights is a legitimate public safety concern of the City which demands the implementation of reasonable regulations; and WHEREAS, the City Council finds that a reduction in the running of red lights through the adoption of a red light camera program will promote the health, life, and property of the City and its inhabitants and visitors; and WHEREAS, the City shall implement a public education and awareness program regarding the implementation of this Ordinance including articles in Schertz Tales and local print media; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION I All of the recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby approved and made a part of this Ordinance for all purposes and are adopted as a part of the judgment and fmdings of the City Council. SECTION II Chapter 86, Article III of the Code of Ordinances is hereby amended by the addition of Sections 86-94 through 86-100, Photographic Traffic Enforcement System, as follows: "Sec. 86-94. Construction; Definitions. Section 86-94 through and including Section 86-100 are referred to herein as "this Subchapter". Words and phrases used in this Subchapter shall have the meanings set forth in this Section, unless the context of their usage clearly requires otherwise. Words and phrases that are not defmed below shall be given their common, ordinary meaning unless the context clearly requires otherwise. When not inconsistent with the context, words used in the present tense shall include the future tense (and vice versa); words in the plural number shall include the singular number (and vice versa); and words in the masculine gender shall include the feminine gender (and vice versa). Headings and captions are for reference purposes only. "Department" shall mean the Police Department of the City of Schertz, Texas. "Intersection" shall mean the place or area where two or more streets intersect. "Motor Vehicle" or "Vehicle" shall mean any motor vehicle subject to registration pursuant to the Texas Certificate of Title Act (Chapter 501 of the Texas Transportation Code, as amended). "Notice of Violation" shall mean a notice mailed to a person identified as having violated this Subchapter and that complies with the content requirements set out in this Subchapter. A notice of violation is not a criminal citation. 20160826.2 2 "Owner" shall mean the owner of a motor vehicle as shown on the motor vehicle registration records of the Texas Department of Transportation or the analogous department or agency of another state or country. The term "owner" includes: (a) a lessee of a motor vehicle under a lease of six (6) months or more; or (b) the lessee of a motor vehicle rented from a motor vehicle rental or leasing company, but does not include the motor vehicle rental or leasing company itself. "Photographic Traffic Enforcement System" or "System" means a system that (a) consists of a camera and vehicle sensor installed to work in conjunction with an electrically operated traffic control signal; and (b) is capable of producing, depicting, photographing or recording at least two (2) recorded images of a license plate attached to the front or rear of a motor vehicle. "Recorded Image" means an image recorded by a photographic traffic enforcement system that depicts the license plate attached to the front or rear of a motor vehicle and is automatically produced, depicted, photographed, or recorded on a photograph or digital image. "System Location" means the approach to an intersection toward which a photographic traffic enforcement system is directed and in operation. "Traffic Control Signal" means a traffic control device that displays alternating red, amber, and green lights that directs traffic when to stop at or proceed through an intersection. Sec. 86-95. Offense. It shall be unlawful for a motor vehicle to proceed into an intersection when the traffic control signal for that vehicle's direction of travel is emitting a steady red signal. The owner of the motor vehicle shall be responsible for a violation of this Section, except as otherwise provided in this Subchapter. Sec. 86-96. Administration of Photographic Traffic Enforcement System. (a) The Department shall implement, administer, and enforce the City's photographic traffic enforcement system and shall maintain a list of system locations where photographic traffic enforcement systems are installed. (b) All enforcement records including, but not limited to, a recorded image resulting from a photographic traffic enforcement system shall be confidential to the extent allowed by Texas law and may be used only to pursue a violation of this Subchapter. (c) Signs shall be posted and maintained advising motorists that photographic traffic enforcement systems are in operation. Every sign shall be clearly visible to all directions of traffic at every intersection with a photographic traffic enforcement 20160826.2 3 system. The Department shall only issue warning notices (rather than notices of violation) for the first thirty (30) days after operation of a new photographic traffic enforcement system at an intersection. Waming notices shall contain the same information required by Subsection ( e) below. (d) A notice of violation shall be mailed to the owner of the motor vehicle no later than thirty (30) days after the date the violation is alleged to have occurred. The notice of violation shall be mailed to 1. the owner's address as indicated on the registration records of the Texas Department of Transportation; or 2. if the vehicle is registered in another state or country, the owner's address as shown on the motor vehicle registration records of the department or agency of the other state or country that is analogous to the Texas Department of Transportation. ( e) A notice of violation shall contain the following information: 1. a description of the alleged violation; 2. the location of the intersection where the violation occurred; 3. the date and time of the violation; 4. the name and address of the owner of the vehicle involved m the violation; 5. the license plate number displayed on the license plate of the vehicle involved in the violation; 6. a copy of a recorded image depicting the license plate number of the vehicle; 7. the amount of the civil penalty imposed for the violation; 8. the date by which the civil penalty must be paid; 9. a statement that a recorded image is evidence in a proceeding for the imposition of a civil penalty; 10. a statement that the person named in the notice may pay the civil penalty in lieu of appearing at a nonjudicial administrative adjudication; 11. information informing the person (i) of the right to contest the imposition of the civil penalty in a nonjudicial administrative hearing; 20160826.2 4 20160826.2 (ii) of the manner and time in which the civil penalty may be contested; (iii) that failure to pay the civil penalty or contest liability in a timely manner is an admission of liability; (iv) that failure to appear at a nonjudicial administrative hearing after having requested a hearing is an admission of liability; (v) that failure to timely pay the civil penalty may result in the imposition of a late payment fee of $25.00; and (vi) that the request for a nonjudicial administrative hearing may subject the person to a $50.00 administrative hearing charge if found liable or if the person fails to appear; 12. a statement that, if at the time and place of the violation the vehicle was being operated by a person other than the owner, the owner may transfer liability for the violation to the person who was operating the vehicle at that time and place if the owner submits to the Department by verifiable affidavit, on a form provided by the Department, or under oath at an administrative adjudication hearing, the name and current address of the person (i) operating the vehicle at the time and place of the violation; (ii) who was the lessee of the vehicle at the time of the violation, if the vehicle was rented or leased tram a person in the business of renting or leasing motor vehicles at that time; or (iii) who was the subsequent owner of the motor vehicle, if ownership of the vehicle was transferred by the owner before the time of violation; and 13. any other information the Department deems prudent and necessary. (f) If it is determined, through affidavit or oath, that the motor vehicle was being operated by a person other than the owner, the Department shall reissue notice of violation to the actual operator within fifteen (15) days of such determination. (g) No notice of violation shall be issued and no civil penalty shall be imposed if the Department determines that the motorist was arrested, was issued a criminal citation and notice to appear, or was issued a warning by a duly authorized peace officer for a violation of Section 544.007(d) of the Texas Transportation Code, as amended, recorded by the photographic traffic enforcement system. (h) No notice of violation shall be issued if the quality of the image captured by the system is so inferior as to prohibit positive identification of the license plate. 5 (i) A notice of violation under this Section is presumed to have been received on the tenth (10th) day after the date the notice of violation is mailed. All notices shall be mailed United States First Class Mail, return receipt requested. (j) In lieu of issuing a notice of violation, the Department may mail a warning notice to the owner that must contain the information in Subsection (e) above. Sec. 86-97. Affirmative Defense. The owner of the motor vehicle shall be responsible for a violation of this Subchapter, unless the owner can, by preponderance of the evidence, show that 20160826.2 (a) the traffic-control signal was not in proper position and sufficiently visible to an ordinarily observant person; (b) the operator of the motor vehicle was acting in compliance with the lawful order or direction of a police officer; (c) the operator of the motor vehicle was part of a funeral procession or made a legal, permitted turn at a red light following a complete stop; (d) the operator of the motor vehicle violated the instructions of the traffic-control signal so as to yield the right-of-way to an immediately approaching authorized emergency vehicle; (e) the motor vehicle was being operated as authorized emergency vehicle under Chapter 546 of the Texas Transportation Code, as amended, and the operator was acting in compliance with that Chapter; (f) the motor vehicle was a stolen vehicle and being operated by a person other than the owner of the vehicle without the effective consent of the owner; (g) the license plate depicted in the recorded image of the violation was a stolen plate and being displayed on a motor vehicle other than the motor vehicle for which the plate has been issued; (h) the motor vehicle was leased, rented, or otherwise in the complete care, custody, or control of another natural person; (i) the presence of ice, snow, unusual amounts of rain, or other unusually hazardous road conditions existed that made compliance with this Subchapter more dangerous under the circumstances than non-compliance; (j) (k) the owner was not the owner of the motor vehicle at the time of the violation; or the owner was arrested, was issued a criminal citation and notice to appear, or was issued a warning by a duly authorized peace officer for a violation of Section 6 544.007(d) of the Texas Transportation Code, as amended, recorded by the photographic traffic enforcement system. Sec. 86-98. Penalty; Enforcement. (a) A violation of this Subchapter shall be deemed a noncriminal violation for which a civil penalty will be assessed. The imposition of a civil penalty under this Subchapter is not a conviction and may not be considered a conviction for any purpose. (b) The civil penalty for which the owner or, when applicable, the operator is liable is $75.00, provided that for a third or subsequent violation in any twelve (12) month period, the amount of the penalty shall be $200.00. (c) A person who fails to pay a civil penalty within the time allowed by this Subchapter shall be additionally liable for a late-payment fee of $25.00. (d) The City Attorney is authorized to file suit to enforce collection of a civil penalty assessed under this Subchapter. Sec. 86-99. Nonjudicial Administrative Hearing. (a) A person who receives a notice of violation under this Subchapter may contest the imposition of the civil penalty by requesting in writing a nonjudicial administrative hearing within the time provided in the notice, which period shall not be less than twenty one (21) days after notification of the violation. (b) The Department shall establish an administrative process to review objections to violation notices including the selection of a hearings officer who shall preside over the nonjudicial administrative hearing and, at a minimum, shall be a person knowledgeable in the laws governing traffic control and enforcement with competencies in due process, municipal law, effective writing and speaking, fair and impartial decision-making, and related areas as evidenced through application, interview, and competency-based training. (c) Failure to pay a civil penalty or contest liability in a timely manner is an admission in the full amount of the civil penalty assessed in the notice of violation and constitutes a waiver of the right to appeal under Section 86-100 of this Subchapter. (d) Failure to appear at a nonjudicial administrative hearing after having requested a hearing is an admission of liability for the full amount of the civil penalty assessed in the notice of violation and constitutes a waiver of the right to appeal under Section 86-100 of this Subchapter. ( e) The civil penalty shall not be assessed if 1. after the hearing, the hearing officer enters a fmding of no liability; or 20160826.2 7 2. within the time prescribed in the notice of violation, the person against whom the civil penalty is to be assessed submits the proof described in Section 86-96(e)12 of this Subchapter. (f) A person who is found liable after a nonjudicial administrative hearing or who requests a hearing and thereafter fails to appear at the time and place of the hearing is liable for administrative hearing costs in the amount of $50.00 in addition to the amount of the civil penalty assessed for the violation. A person who is found liable for a civil penalty after a nonjudicial administrative hearing shall pay the civil penalty and costs within ten (10) days of the determination of liability. (g) In a nonjudicial administrative hearing, the issues must be proved at the hearing by a preponderance of the evidence. The reliability of the photographic traffic enforcement system used to produce the recorded image of the violation may be attested to in a nonjudicial administrative hearing by affidavit of an officer or employee of the City or the entity with which the City contracts to install or operate the system and who is responsible for inspecting and maintaining the system. An affidavit of an officer or employee of the City that alleges a violation based an inspection of the pertinent recorded image is admissible in a proceeding under this Subchapter, is evidence of the facts contained in the affidavit, and is prima facie evidence of the violation alleged in the notice of violation. (h) Notwithstanding anything in this Subchapter, a person who fails to pay the amount of a civil penalty or to contest liability in a timely manner is entitled to a nonjudicial administrative hearing on the violation if 1. the person files an affidavit with the hearings officer stating the date on which the person received the notice of violation that was mailed to the person; and 2. within the same period required for a hearing to be timely requested but measured from the date the mailed notice was received as stated in the affidavit, the person requests a nonjudicial administrative hearing. Sec. 86-100. Appeal. A person who is found liable after a nonjudicial administrative hearing may appeal that finding of liability to the Municipal Court of the City by filing a notice of appeal with the clerk of the Municipal Court. The notice of appeal must be filed, in writing, not later than the 31 st day after the date on which the nonjudicial administrative hearing officer enters the determination of liability and shall be accompanied by the payment of an appeal fee of $50.00. Unless the person, on or before the filing of the notice of appeal, posts a bond in the amount of the civil penalty and any late fees, an appeal does not stay the enforcement of the civil penalty. An appeal shall be determined by the Municipal Court in a trial de novo. The affidavits submitted under Section 86- 99(h) of this Subchapter shall be submitted to the municipal judge in the trial de novo, and the issues must be proved by a preponderance of the evidence." 20160826.2 8 SECTION III Should any part, sentence, or phrase of this Ordinance be determined to be unlawful, void or unenforceable, the validity of the remaining portions of this Ordinance shall not be adversely affected. No portion of this Ordinance shall fail or become inoperative by reason of the invalidity of any other part. All provisions of this Ordinance are severable. SECTION IV All ordinances or parts of ordinances in force when the provisions of this Ordinance becomes effective which are inconsistent or in conflict with the terms and provisions contained in this, Ordinance are hereby repealed only to the extent of such conflict. SECTION V This Ordinance shall be and become effective immediately upon and after its passage and publication as may be required by governing law. SECTION VI It is hereby officially found and determined that the meetings at which this Ordinance was considered and adopted were open to the public and that public notice of the time, place, and purpose of said meetings was given as required by the Open Meetings Act, Chapter 551 of the Texas Government Code, as amended. [The remainder of this page intentionally left blank.) 20160826.2 9 PASSED AND APPROVED on first reading this the ,;<g -t6 day of November, 2006. PASSED, APPROVED, AND ADOPTED on second reading this the 5-+.12 day of December, 2006. ATTEST: ~~ Y EC TARY 20160826.2 10