CITY OF HOMER
HOMER, ALASKA
Yourkowski
ORDINANCE 05-49
AN ORDINANCE OF THE CITY
COUNCIL ENACTING A NEW CHAPTER OF THE HOMER CITY CODE PROHIBITING THE CREATION
OR MAINTENANCE OF A BEAR ATTRACTION NUISANCE AND ESTABLISHING PENALTIES FOR
VIOLATIONS
THE CITY OF HOMER HEREBY ORDAINS:
Section 1. A new chapter 5.38 of the Homer City
Code, entitled "Bear Attraction Nuisances," is hereby enacted to read
as follows:
5.38.010 Bear attraction
offense. (a)
No owner or
person in control of property shall cause or allow the creation or maintenance
of a bear attraction nuisance on that property or the right-of-way abutting
that property.
(b) Every act of violation
and every day upon which such violation shall occur shall constitute a separate
offense.
5.38.020 Penalties. (a)
Terms used in this section identifying culpable mental states shall have the
meaning ascribed to them in section 5.38.050.
Upon conviction of a violation of this chapter, a person shall be
punished by a fine as follows:
(1) A fine of not less than $250 and not more than $500 if the offense
is committed intentionally, knowingly, recklessly, or with criminal negligence;
(2) A fine of not less than $50 and not more than $300 if the offense
is not committed intentionally, knowingly, recklessly, or with criminal
negligence.
(b) In addition, the City
may pursue any civil remedy available under Section 1.16.020 or other law.
5.38.030 Citation. Whenever any material
constituting a bear attraction nuisance is found on property in violation of
this chapter, the official finding it may note the address and any other
information upon or within the material that may identify the owner or person
in. charge of the property. The
official shall affix to such property in a conspicuous location a summons and
complaint for the owner or person in control to answer to the charge in court
at a specified time; and a copy of the summons and complaint shall be mailed to
the owner or person in control of the property at the last known or reasonably
ascertainable address of such person.
In lieu of affixing the summons and complaint to the property and
mailing, the official may personally serve the summons and complaint upon the
owner or person in control of the property.
5.38.040 Defenses. (a) With respect to a charge made under this chapter, it is no
defense to the owner of property that such property was in the possession or
control of another, unless it is shown to the satisfaction of the court that at
the time of the offense such property was being used without the consent of the
owner.
(b) With respect to a charge of failure to appear in court in
response to a summons and complaint making a charge under this chapter, it is a
defense to the owner of property if it is shown to the court’s satisfaction
that the owner was not aware of the citation and that such property was in the
possession or control of another at the time of the offense.
5.38.050 Definitions. As
used in this chapter, the following words and phrases shall be construed as
defined below, unless the context clearly indicates a different meaning is
intended:
(1) Bear attraction nuisance
means
(A) More than one-half gallon of any putrescible
material, including packaging or other surfaces to which the material is
adhered or in which it is contained;
(B) Any organic material of a type that has previously attracted a
bear to the property;
(C) Soiled disposable diapers;
(D) Exceptions. “Bear attraction nuisance” does not include:
i. Material in a
certificated landfill;
ii.
Manure or
sewage;
iii. Material in a garbage
can stored outside temporarily for purposes of collection after 4:00 a.m. on a
day scheduled for collection;
iv. Living or dead flora or
fauna indigenous to the property on which it is located;
v. Material completely
enclosed in a structure or container that requires hands or tools to open;
vi. Material in a metal
garbage container designed to be lifted and emptied by a garbage truck,
provided that the container is tightly covered by a bear-resistant metal lid
fastened with a bear-resistant device or located within a garbage containment
area behind barriers sufficient to withstand entry by a bear.
(2) Criminal negligence. A person acts with "criminal
negligence" with respect to a result or to a circumstance described by a
provision of law defining an offense when the person fails to perceive a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists; the risk must be of such a nature and degree that the
failure to perceive it constitutes a gross deviation from the standard of care
that a reasonable person would observe in the situation.
(3) Garbage can means a
watertight, odor-free, corrosion-resistant container inscribed with the address
of its owner and equipped with a tight-fitting cover secured so as to remain in
place if the can is knocked over.
(4) Intentionally. A person acts "intentionally" with respect to a
result described by a provision of law defining an offense when the person's
conscious objective is to cause that result; when intentionally causing a
particular result is an element of an offense, that intent need not be the
person's only objective.
(5) Knowingly. A person acts
"knowingly" with respect to conduct or to a circumstance described by
a provision of law defining an offense when the person is aware that the
conduct is of that nature or that the circumstance exists; when knowledge of
the existence of a particular fact is an element of an offense, that knowledge
is established if a person is aware of a substantial probability of its
existence, unless the person actually believes it does not exist; a person who
is unaware of conduct or a circumstance of which the person would have been
aware had that person not been intoxicated acts knowingly with respect to that
conduct or circumstance.
(6) Person in control
means a tenant or an agent, manager, superintendent, or other owner’s
representative.
(7) Property means real
property, developed or undeveloped, including without limitation any real
property with a house, apartment building, mobile home, mobile home park, other
multifamily development, any commercial or industrial structure or use, any
public or private institution or organization, and vacant land.
(8) Recklessly. A person acts "recklessly" with respect to a result
or to a circumstance described by a provision of law defining an offense when
the person is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the circumstance exists;
the risk must be of such a nature and degree that disregard of it constitutes a
gross deviation from the standard of conduct that a reasonable person would
observe in the situation; a person who is unaware of a risk of which the person
would have been aware had that person not been intoxicated acts recklessly with
respect to that risk.
(9) Summons and complaint
means a citation that meets the requirements of Alaska District Court Criminal
Rule 8(c) or other form of summons and complaint acceptable to the Alaska court
system.
5.38.060 Regulations. The
city manager may adopt regulations pursuant to implement the provisions of this
chapter, which shall become effective upon approval by resolution of the City
Council after conducting a public hearing.
Section 2. This ordinance is of a
permanent and general character and shall be included in the City Code.
ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA,
this __________ day of ______________________, 2005.
CITY OF HOMER
_______________________________
James Hornaday, Mayor
ATTEST:
___________________________
Mary L. Calhoun, City Clerk
AYES:
NOES:
ABSTAIN:
ABSENT:
First Reading:
Public Hearing:
Second Reading:
Effective Date:
Reviewed and approved as to form:
_____________________________ ___________________________
Walt Wrede Gordon
J Tans
City Manager City
Attorney
Fiscal Note: Costs associated for the City, Private
Enterprise and Public to upgrade Trash Cans, Garbage Containers and Dumpster
Units to Bear Proof units. Costs are not solidly defined. There are
approximately 50 City painted Trash Cans.