ordinance re public transporation out of service orders

AN ORDINANCE AMENDING HOMER CITY CODE CHAPTER 8.12 TO PROHIBIT THE OPERATION OF A PUBLIC TRANSPORTATION VEHICLE BY ANY PERSON UNDER THE INFLUENCE OF OR IN POSSESSION OF ANY MEASURABLE QUANTITY OF ALCOHOLIC BEVERAGE OR CERTAIN CONTROLLED SUBSTANCES, REQUIRING OUT OF SERVICE ORDERS TO SUCH PERSONS, AMENDING THE GROUNDS FOR REVOCATION OR SUSPENSION OF CHAUFFEUR'S LICENSES, AND AMENDING THE ADMINISTRATIVE HEARING AND APPEALS PROCEDURES

THE CITY OF HOMER HEREBY ORDAINS:

Section 1. Section 8.12.110 of the Homer City Code is hereby amended to read as follows:

8.12.110 Definitions. Unless otherwise expressly stated, wherever used in this chapter, the following words and phrases shall have the meanings given to them by this section.

a. "Chauffeur's license" means a written authorization granted to an individual driver permitting such person to drive or operate a public transportation vehicle within the City.

b. "City" unless otherwise specifically designated, means the City of Homer.

c. "on-duty" means the period of time in which a person is

1. required by the person's employer to be ready, or standing ready if self-employed, to immediately operate a public transportation vehicle, including time spent waiting to be assigned to operate a public transportation vehicle;

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2. inspecting, servicing, or conditioning a public transportation vehicle;

3. in or upon a public transportation vehicle;

4. loading or unloading, or supervising the loading or unloading of, a public transportation vehicle, or charging or collecting fares, or giving or receiving receipts for use of a public transportation vehicle;

5. taking action, as required by state or federal law, following an accident involving a public transportation vehicle; or

6. repairing or obtaining assistance for a disabled public transportation vehicle.

d. "Operating a public transportation vehicle" means

1. to drive a public transportation vehicle; or

2. whether or not the vehicle is in motion, or is capable of being moved, to be in actual physical control, or to attempt to affect the movement, of a public transportation vehicle.

c.e. "Operator" means and includes any person owning or having control of the use and/or driving one or more public transportation vehicles upon the City streets or engaged in such business.

d.f. Public transportation classification "other" means and includes any vehicle transporting individuals or groups and charging a fee or \fare not fitting within the definition of taxi-cab, limousine, sightseeing classification for public transportation.

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e.g. Public transportation classification "limousine" means any motorized multi-passenger vehicle engaged in the carrying of person sin exchange for receiving fixed-route fares/fees.

f.h. Public transportation classification "sightseeing" means any multi-passenger vehicle engaged in the carrying of persons in exchange for fixed-route fares/fees, operating over a route designated for visiting specific places and things of interest, for pleasure and education.

g.i. Public transportation classification "taxi-cab" means any motor vehicle having a manufactured-rated seating capacity of nine passengers or less engaged in the carrying of persons in exchange for receiving fares, not operated over a fixed route, whether the same be operated from a street stand or subject to calls from a central location or otherwise operated for hire to perform public transportation.

h.j. "Vehicle permit" is the documented authority to operate a specific vehicle for public transportation within the City upon completion of vehicle inspection by the Homer Police Department.

Section 2. Section 8.12.230 of the Homer code is hereby amended to read as follows:

8.12.230 Chauffeur's license--Suspension/revocation. The Chief of Police or ~~their designees~~ his or her designee may temporarily suspend or

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permanently revoke a chauffeur's license for any of the following causes subject to administrative hearing and appeals provisions of this chapter:

a. False or erroneous material statements contained in the licensee's application and which were conducive to the issuance of the license;

b. Failure of the licensee to properly display, in any public transportation vehicle permitted under this chapter, the chauffeur's license containing identifying photograph;

c. Operation within the City of public transportation vehicles for which a vehicle permit, as provided for in this chapter, has not been issued or has been suspended or revoked.

d. Any conduct while operating a public transportation vehicle in the City that would constitute a felony or misdemeanor under state law.

e. Any conduct that would constitute a violation of this chapter.

f. Using or operating a public transportation vehicle in a negligent or reckless manner.

g. Failure to remain qualified to hold a chauffeur's license under subsection 8.12.200(a).

h. Driving a public transportation vehicle after being ordered out of service under section 8.12.250, under AS 28.33.130, or under regulations adopted under AS 28.05.011.

i. Refusal to submit to a chemical test in violation of AS 28.35.032.

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j. Refusal to submit to a breath test or a preliminary breath test at the request of a law enforcement officer under AS 28.35.031(a) or (b).

k. Leaving the scene of an accident in violation of AS 28.35.050—.060, or failing to file, or providing false information in, an accident report in violation of AS 28.35.110.

Section 3. A new section 8.12.250 of the Homer City Code is hereby enacted to read as follows:

8.12.250 Out of Service Orders. a. A person may not operate a public transportation vehicle or be on-duty

1. if, within the preceding four hours, the person

(A) consumed or was under the influence of

(i) an alcoholic beverage;

(ii) a controlled substance not prescribed by a physician; or

(iii) a controlled substance prescribed by a physician that might impair a person's ability to operate a public transportation vehicle; or

(B) had any measurable alcohol concentration within the blood or breath or any detectable presence of alcohol;

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2. while in possession of an alcoholic beverage or a controlled substance not prescribed by a physician unless

(A) the alcoholic beverage or controlled substance is manifested and documented as part of an authorized shipment of cargo; or

(B) under AS 04, the alcoholic beverage may be legally served to passengers being carried for hire;

3. after being placed out of service for violation of a regulation adopted under AS 28.05.011;

4. after being placed out of service by under AS 28.33.130; or

5. with an invalid operator's or commercial operator's license.

b. An employer, or a peace officer, who has reasonable grounds to believe that a person has violated a. of this section, shall immediately give the person a written notice ordering the person out of service. If it is not possible to issue a written out of service order, a verbal order may be issued. An employer may not knowingly allow, require, permit, assign, or authorize a person to operate a public transportation vehicle or be on-duty during a period in which

1. the person has been ordered out of service under this section; or

2. the person has violated a. of this section, even if an out of service order has not been issued.

c. A person who is ordered out of service under this section

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1. may not operate a public transportation vehicle or be on-duty for 24 hours following issuance of the out of service order; and

2. shall report that fact, in writing,

(A) within 24 hours to the person's employer;

(B) within 7 days to the Homer police department; and

(C) within 30 days to the Alaska Department of Administration if the person possesses a commercial motor vehicle license.

d. In this section,

1. "controlled substance" means any substance listed as being controlled under AS 11.71 or 21 U.S.C. 812 — 813, or determined under federal regulations to be controlled for purposes of 21 U.S.C. 801 — 813 (Controlled Substances Act);

2. "employer" means a person who

(A) provides compensation to a person who operates a public transportation vehicle, including wages or other remuneration, whether through an employment relationship or by contract; or

(B) acts as an agent of someone who provides compensation to a person who operates a public transportation vehicle, with authority to allow, require, permit, assign, or authorize the person being

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compensated to operate a public transportation vehicle.

e. An out of service order issued under this section is not subject to the administrative hearing requirements of section 8.12.600.

Section 4. Section 8.12.600 of the Homer City Code is hereby amended to read as follows:

8.12.600 Public transportation--Revocation or suspension--Administrative hearing. a. Before suspending or revoking any public transportation permit or license, a hearing officer, who shall be the Chief of Police ~~and the City Manager, or their designees~~ or a person designated by the Chief of Police, shall conduct an administrative hearing into the cause for suspension ~~and/or~~ or revocation.

b. Notice shall be given by certified mail, return receipt requested, to the permit or license holder and any complainant, of the intent to revoke or suspend the permit or license, naming a specific cause for such action. The notice shall precede the hearing by no less than fifteen days and shall include, but is not limited to the following:

i. The nature of violation or complaint causing revocation or suspension action;

ii. The date, time and place of the hearing;

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iii. The procedure by which the licensee may appeal the decision of the administrative hearing.

c. After conclusion of the administrative hearing, a written determination of the issues, including conclusions and findings, shall be prepared and signed by the hearing officer.

d. A copy of the written determination shall be sent by ~~certified mail, return receipt requested,~~ mail to all persons who were entitled to notice of the hearing and to the ~~Chief of Police~~ City Manager and the City Clerk. The time for appeal from the ~~written determination~~ decision of the hearing officer begins to run three days after the date of mailing.

Section 5. Section 8.12.700 of the Homer City Code is hereby amended to read as follows:

8.12.700 Public transportation--Appeals. a. Sections 700 through ~~720~~ 710 of this chapter govern all appeals from administrative determinations made under this chapter. The ~~City Council shall sit as a Board of Appeals~~ City Manager shall hear appeals from decisions of the hearing officer conducted under Section 8.12.600, provided first there has been an administrative hearing resulting in a written determination with conclusions and findings.

b. An appeal from an administrative determination, including without limitation a suspension or revocation of a vehicle permit or Chauffeur's license must be filed within fifteen days of the ~~action or~~ date of mailing the written

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determination of the administrative hearing. Any decision not appealed within ~~the provided period shall become final.~~ that time shall be unappealable.

c. All appeals to the ~~Board of Appeals~~ City Manager shall be filed in writing with the City Clerk. The notice of appeal will contain, but not be limited to the following:

i. Name and address of the appellant;

ii. A description of the action or determination from which the appeal is sought;

iii. The grounds for appeal which must include a description of detailed and specific allegations of error.

d. Appeals to the Superior Court from the ~~action of the Board of Appeals~~ decision of the City Manager shall be filed no later than ~~fifteen~~ thirty days following the date of mailing the decision of the ~~Board of Appeals~~ City Manager to the parties. ~~The time for appeal to the Superior Court begins to run three days after the date of mailing of the decision of the Board of Appeals~~.

Section 6. Section 8.12.710 of the Homer City Code is hereby amended to read as follows:

8.12.710 Appeals procedure. a. All appeals to the City Manager must be decided by the ~~Board of Appeals~~City Manager or a hearing officer designated by the City Manager within sixty days from the day the appeal was properly filed.

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b. The appellant, complainant and all parties who have participated or been a party to the administrative hearing and decision shall be provided with fifteen days' notice of the appeal hearing by ~~certified, receipted mailing.~~mail, or upon request by facsimile or electronic mail.

c. An electronic recording shall be kept of the entire proceeding ~~and shall be reduced to written minutes~~. The electronic recording shall be preserved for one year unless required for further appeals.

d. The appeal record ~~and Board procedure shall be as follows~~ shall include the following:

1. Complaints, notices and correspondence regarding the administrative hearing, and all exhibits introduced at the hearing;

2. ~~Minutes~~ The tape recording of the Administrative hearing;

3. Written findings and conclusions setting out the decision of the administrative hearing;.

~~4. The City Attorney must be present at convened Board of Appeal proceedings convened under this chapter;~~

~~5. The Board of Appeals shall adopt as part of its decision an official statement of findings stating the reason(s) supporting its decision;~~

~~6. Copies of the Board of Appeals decision shall be promptly mailed to all parties participating in the appeal.~~

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e. The City Manager or designated hearing officer shall issue a written decision including findings and conclusions. A copy of the decision shall be promptly mailed to all parties participating in the appeal.

Section 7. Section 8.12.720 of the Homer City Code is hereby repealed.

8.12.720 Board of Appeals--Notification. "Notification of Board of Appeals--Public Transportation" shall be published in a newspaper of general circulation within the City not less than two consecutive weeks prior to the hearing. The appellant, complainant and all other parties to the appeal shall be notified by sending a copy of the notice of appeal hearing by certified mail, return receipt, not less than, fifteen days before the appeals hearing. The notice-of-appeals hearing shall include:

~~a. Date, time and place of the hearing;~~

~~b. The name and address of the party making the appeal;~~

~~c. A summary statement of the grounds for appeal.~~

Section 8. This ordinance is of a permanent and general character and shall be included in the City code.

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