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Confidential Correspondence with AttorneyKenne Graven` CHARTERED FROM: MDT Mary D. Tioen 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 (612) 337-9277 telephone (612) 337-9310 fax mtietien@kennedy-graven.com http://w .kennedy-eravenxom MEMORANDUM DATE: September 9, 2002 RE: Citations for Motor Vehicle Violations under Administrative Penalty Ordinance; Preemption by State Law I. Local Authority to Regulate Traffic. Minnesota Statutes Chapter 169 provides a uniform set of traffic regulations and penalties for violations: The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein. Local authorities may adopt traffic regulations which are not in conflict with the provisions of this chapter; provided, that when any local ordinance regulating traffic covers the same subject for which a penalty is provided for in this chapter, then the penalty provided for violation of said local ordinance shall be identical with the penalty provided for in this chapter for the same offense. Minn. Stat. § 169.022 (emphasis added). Despite the broad reach of Chapter 169, local authorities do have the authority to regulate traffic in certain areas: The provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction ... within the reasonable exercise of the police power from: 1) regulating the standing or parking of vehicles; 2) regulating traffic by means of police officers or traffic -control signals.... MDT-220190v1 CR205-138 Minn. Stat. § 169.04 (a) (1)-(2). See State v. Hyland, 431 N.W.2d 868 (regulation of parking is within a municipality's police powers)(citing Hendricks v. City of Minneapolis. 207 Minn. 151, 290 N.W. 428 (1940)); Benson Hotel Corp. v. City of Minneapolis, 290 Minn. 14, 187 N.W.2d 610 (1971) (city has jurisdiction to supervise and control flow of traffic in streets and the right to change two-way street into one-way street). Regulations adopted by local authorities, however, cannot conflict with Chapter 169. H. Enforcement of Traffic Laws. State statute provides for a uniform method of penalizing motor vehicle violations under Chapter 169 or local ordinances: Except as provided in subdivision 3, there shall be a uniform ticket issued throughout the state by the police and peace officers or by any other person for violations of this chapter and ordinances in conformity thereto. Such uniform traffic ticket shall be in the form and have the effect of a summons and complaint. Except as provided in paragraph (b), the uniform ticket shall state that if the defendant fails to appear in court in response to the ticket, an arrest wan -ant may be issued. Minn. Stat. § 169.99, subd. 1 (emphasis added). This provision goes on to specifically prescribe the content and form of the "uniform traffic ticket" See id. at subd. 1, la, lb (ticket must consist of four parts, complaint must be on white paper; court record on yellow paper; police record on pink paper; summons printed on off-white tag stock; if the offense is a petty misdemeanor, the ticket must state that a failure to appear will be considered a plea of guilty and waiver of the right to trial, unless the failure to appear is due to circumstances beyond the person's control; ticket must state officer's opinion whether violation endangered any person or property; ticket must specify whether speed was greater than ten miles per hour in excess of the lawful speed). Finally, the "commissioner of public safety shall prescribe the detailed form of the uniform traffic ticket and shall revise the uniform ticket on such subsequent occasions as necessary and proper to keep the uniform ticket in conformity with state and federal law. Id. at subd. 2 This section also provides that a city of the first class, through its governing body, may alter by deletion or addition the uniform traffic ticket in such a manner as it deems advisable for use in such city. See id., subd. 3 (emphasis added). Given the detailed procedures and requirements for the issuance of a "uniform traffic ticket" under Minn. Stat. § 169.99, cities arguably do not have the authority to issue an "administrative citation" for chapter 169 or local ordinance motor vehicle violations. See Nordmarken v. City of Richfield (where process and procedure for adopting land use and zoning ordinances is fully covered by state law, local regulation providing for different procedure is preempted). Although cities have the authority under Minn. Stat. § 169.04 to substantively regulate in certain areas, such as the standing or parking of vehicles, MDT-220190v1 CR205-138 designating through highways and one-way roadways, section 169.99 clearly requires one method and form of citation for violations. Issuance of an "administrative citation", under an administrative penalty ordinance, for chapter 169 violations and violations of similar local ordinances appears to conflict with the "uniform traffic ticket" procedures set forth in section 169.99. Also, the "administrative citation" would not meet the requirements of form and substance mandated by the statute. Finally, section 169.99 allows only first class cities to alter the "uniform traffic ticket"; it does not give other cities the same authority. This seems to convey the intent that the statute provides an exclusive method and procedure for penalizing motor vehicle violations. MDT-220190vl CR205-138 FILE COPY Mary D. Tietjen 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 (612) 337-9277 telephone (612) 337-9310 fax mtietjen@,kemedy-gmven.com htto•//w .kennedv-eraven.com CHARTERED MEMORANDUM FROM: Mary Tiet en DATE: January 27, 2003 RE: Administrative Penalties This memorandum is in response to an inquiry regarding legislation relating to administrative penalties. In 1999, a bill was introduced in the legislature that would have given both charter and statutory cites express authority to establish a procedure for imposing civil penalties for ordinance violations. (A copy of the bill—H.F. 45 and S.F. No. 42—is attached). The bill was referred to the Committee on Local Government and Metropolitan Affairs. I was informed that the legislation was strongly opposed by the District Court Judges Association and, as a result, failed to pass. Thus, based on the action (or, inaction) of the legislature in 1999, I am skeptical that such legislation would be favored now. Nonetheless, it is my opinion —based on my review of League of Minnesota Cities materials and independent research —that cities already have implied authority to impose and assess administrative penalties. The following is a brief discussion of the legal issues. Authority to Impose Administrative Penalties. Several charter and a few statutory cities in Minnesota have adopted administrative penalty ordinances imposing fines on residents for ordinance and city code violations. Statutory cities, of course, only have powers explicitly or implicitly provided by statute. Charter cities, on the other hand, arguably have more expansive powers derived from a charter, as long as the charter is not inconsistent with state law. Thus, a charter city that adopts a charter provision giving it the authority to impose administrative penalties may have a more solid argument that it may impose administrative penalties. Nonetheless, there is legal authority to support the position that statutory cities also have the power, albeit implied, to impose administrative penalties. Under state statute, a statutory city already has authority to prescribe limited penalties for ordinance violations: The council shall have the power to declare that the violation of any ordinance shall be a penal[ offense and to prescribe penalties therefore. No such penalty shall exceed a fine of $700 or imprisonment in a city or county jail for a period of 90 days, or both, but in either case the costs of prosecution may be added. Minn. Stat. § 412.2312 Although this section appears to give authority only for criminal penalties, it is my opinion that a city would have the implied authority to impose a civil penalty, as long as the fine is $1000 or less. See attached Administrative Penalties in Minnesota Kent Sulem, LMC Attorney, November 14, 1996 (presented at Update for City Attorneys 1997) (citing McQuillan, Municipal Corporations —the authority to establish ordinances inherently implies the power to enforce them; and, the authority to impose criminal sanctions for ordinance violations in Minn. Stat. § 412.231 includes the "lesser" authority to civilly enforce violations). Also, the term "penal offense" does not necessarily include only "criminal" offenses. Because "penal" can be construed more broadly to include penalties in general, and because section 412.231 does not demure the term, I believe it is at least arguable that cities have express authority to impose administrative penalties under this section. See also State v. Robitshek, 60 Minn. 123, 126, 61 N.W. 1023, 1024 (1895) ("the fallacy of the argument of counsel for respondent lies in assuming that violations of municipal by-laws are strictly criminal acts and are always so to be treated"). In addition, there is a general Wile in municipal law that provides that because cities have the power to adopt ordinances, by necessary implication, cities have the power to enforce them, including the imposition of penalties. See 5 McQuillin, Municipal Corporations §§ 17.03-17.04 ("the general doctrine uniformly prevails that a municipal corporation with power to pass ordinances has, as a necessary incident to, implied power to provide for their enforcement by appropriate and reasonable penalties against those who break them); State v. Robitshek 60 Minn. 123, 61 N.W. 1023 ("[T]he enforcement of the ordinances is as much within the authority and power of the city council as is their enactment; and perhaps this would be so in the absence of an express grant of power... It would seem that, under a power to enforce as well as to enact, the city council has control over and can direct the mode and manner of enforcing. Within the express grant of power to enforce there is certainly included the power to provide the method of enforcement."); State v. McDonald, 121 Minn. 207, 141 N.W. 110 (1913) (ordinance imposing either fine or imprisonment is valid; authority to impose a proper penalty is conferred upon the council by the general welfare clause); State ex rel. State Line Sparkler of West Virginia, Ltd. V. Teach. 418 S.E.2d 585 (W. Va. 1992) (even in the absence of an express grant of authority, the power to punish by a pecuniary fine or ' This statute does not define "penal" or "penal offense." ..Penar' is defined as: "Punishable; inflicting a punishment; containing a penalty, or relating to a penalty." Black's Law Dictionary (5" ed. 1979); and "[O]f or relating to punishment or retribution." Gamer, A Dictionary of Modern Legal Usage (2nd ed.1995). Z Minn. Stat. § 609.034 increased the maximum penalty for ordinance violations: "Any law of this state or municipal charter which limits the power of any statutory or home rule charter city, town, county, or other political subdivision to prescribe a maximum fine of $700 or less for an ordinance shall on or after August 1, 2000, be deemed to provide that the statutory or home rule charter city, town, county, or other political subdivision has the power to prescribe a maximum fine of $1,000. penalty is implied from the delegation by the legislature of the right to enforce a particular police power through ordinances or regulations); see generally State ex rel. Village of Fridley v. City of Columbia Heights, 53 N.W.2d 831 (Minn.1952) (municipalities have no such powers except as are expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred); Ennis v. City of Ray, 595 N.W.2d 305 (N.D. 1999) (when a city has general authority to regulate a particular subject matter, the manner and means of exercising those powers, where not specifically prescribed by the legislature, are left to the discretion of the municipal authorities). In sum, it is my opinion that Minn. Stat. § 412.231 gives statutory cities implied —and perhaps express --authority to impose administrative penalties not exceeding $1,000 per violation. Also, a city's power to adopt ordinances implies the power to enforce them through civil penalties. Authority to Specially Assess Penalties for Nuisance Abatement. State law does not provide any explicit authority for cities to specially assess administrative penalties. However, state statute allows cities to collect "unpaid special charges" for certain services provided to property via the special assessment process: in addition to any other method authorized by law or charter, the governing body of any municipality may provide for the collection of unpaid special charges for any part of the costs of ... (3) removal or elimination of public health or safety hazards from private property ... as a special assessment against the property benefited. Minn. Stat. § 429.101, subd. 13 Although the statute does not define "unpaid special charges," it clearly allows cities to abate nuisances and to assess the cost of abatement upon the affected property. Gadev v. City of Minneapolis. 517 N.W.2d 344 (Minn. Ct. App. 1994). Arguably, an administrative penalty imposed due to a property owner's failure to correct a nuisance, could be considered an `unpaid special charge" or a cost associated with abating the nuisance. As such, the City would have the authority to assess the penalty to the property. See, e.g., Gold Vein Limited Liability Co., 973 P.2d 1286 (Colo. Ct. App. 1999) (collection of "delinquent charges" under statute includes fines imposed upon parties who create or continue nuisances; thus, city was entitled to recoup its remediation expenses through liens).° Also, many city codes authorize the city to assess the cost of abating a nuisance. A city could argue —under both § 429.101 and its own code —that 3 Under 429.101, subd. 1, cities may also collect unpaid special charges for the cost of: 1) snow, ice, or rubbish removal from sidewalks; 2) weed elimination from streets or private property; 3) installation or repair or water service lines, street sprinkling or other dust treatment of streets; 4) the trimming and care of trees and the removal of unsound trees from any street; 5) the treatment and removal of insect infested or diseased trees on private property, the repair of sidewalks and alleys; 6) the operation of a street lighting system; or 7) the operation of a street lighting system. ° The distinction in the Cripple Creek case is that the statute expressly stated that cities have the authority to declare and abate nuisances and to impose fines upon parties who continue a nuisance and that a city may, by ordinance "cause any or all delinquent charges, assessments, or taxes made or levied to ... be collected ... in the same manner as taxes ...." The court noted that because "charge" includes "fines" under the statute, the city could recover the fines through use of a lien. Minnesota Statutes do not provide the same express authority to impose a fine. 3 the penalty is part of the "cost" of abating a nuisance and therefore, it has authority to assess the penalty. In addition to Minn. Stat. § 429.101, subd. 1, Minn. Stat. § 514.67 may also provide a basis for a city to assess administrative penalties. Section 514.67 provides that all charges related to any kind of government services will be a lien upon the property: All charges and expenses for anv inspection, examination, or other governmental service of any nature now or hereafter authorized or required by law.... shall constitute and be a first and prior lien from the date of such inspection, examination, or service upon all property in this state subject to taxation as the property of the person from whom such charges and expenses are by law authorized or required to be collected. (emphasis added). The only authority interpreting this section is a 1964 Attorney General Opinion. In that case, the facts involved an arrangement between a city and certain townships for fire protection. The city furnished the men and charged the townships. The townships furnished the equipment and charged property owners $50.00 for each fire call. The question raised was whether the township could collect the $50.00 as property taxes if the property owner failed to pay. The Attorney General first concluded that the service charge against the property owners was not authorized under any statute. Thus, the Attorney General concluded that section 514.67 did not apply because "only such charges and expenses constitute and become a lien as are now or hereafter authorized or required by law." The Attorney General also noted that there was no other statute which would authorize the filing of a lien for a charge such as this. The purpose and application of § 514.67 is not completely clear. Nonetheless, assuming that administrative penalties are impliedly authorized under law, § 514.67 is broad enough ("all charges" of "any nature") that it could be interpreted to authorize assessment of administrative penalties. However, a court could conclude —based on the Attorney General Opinion —that §514.67 does not apply because administrative penalties are not expressly authorized under any statute nor is there any statute that authorizes the filing of a lien for such a penalty. The statute could also be read as simply defining priority of liens ("shall constitute and be a first and prior lien"). Given the broad statutory language, it is my opinion that cities could rely on § 514.67 as a basis for authority to assess administrative penalties. Conclusion Legislation giving cities explicit authority to impose administrative penalties will likely not be favored by the legislature. Past proposed legislation received strong opposition from the District Court Judges Association. While clarification in the statutes would be beneficial, it my opinion that cities already have implied authority to impose and assess administrative penalties.