HomeMy WebLinkAbout2023 Ordinance No. 0091
BY AUTHORITY
ORDINANCE NO. 09 COUNCIL BILL NO. 02
SERIES OF 2023 INTRODUCED BY COUNCIL
MEMBER WOODWARD
AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE 1-4-7,
RESTITUTION TO VICTIMS OF ORDINANCE VIOLATIONS
WHEREAS, Englewood Municipal Code contains mandatory provisions for the
imposition and collection of restitution in Municipal Court; and
WHEREAS, these provisions infringe upon prosecutorial discretion, to weigh the facts
and evidence to determine whether restitution should be sought in the interests of justice; and
WHEREAS, in requiring the prosecutor and court to collect funds from defendants without
the means to pay, these provisions may subject the City to potential liability; and
WHEREAS, these provisions may provide a disservice to the victim, as continued
unsuccessful collection attempts required by EMC may result in the passage of time such that the
victim is prohibited from later attempting to collect in a private, civil action; and
WHEREAS, EMC provisions regarding restitution should be revised to provide the
Municipal Prosecutor and Court with the tools necessary to impose and legally collect restitution
for the victim, but still allow for discretion to ensure compliance with applicable law, allow the
prosecutor and Court to weigh the facts and evidence to obtain the most just result for both the
victim and Defendant, and to impose and/or collect restitution orders in a legal, efficient, and
beneficial manner to all those impacted.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. AMENDMENT TO MUNICIPAL CODE
1-4-7: - Restitution to Victims of Ordinance Violations.
A. No later than 91 days after conviction or plea of guilty or no contest, the City Prosecutor
may Upon conviction of a defendant in any offense in which the conduct of the defendant
resulted in loss or damage to the property of another or cause bodily injury to another, request
restitution for any loss, damage, or bodily injury caused by the defendant to another. The
court shall consider any such request for restitution and upon a finding or admission that
restitution is owed, order defendant to pay as a condition of probation or as a mitigating factor
in imposing any punishment, provide that the defendant make restitution to the victim of his
conduct for the actual uncompensated pecuniary loss which were sustained by the victim.
Such restitution shall be ordered by the court as a condition of probation or as a condition of
mitigating any punishment. The amount of such restitution shall be based on the actual
pecuniary damages sustained by the victim, the ability of the defendant to pay and the
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defendant's obligation to support his dependents and other family obligations.
Such restitution may be paid to the office of the City Attorney for deposit into the City's
treasury and repayment therefrom to the victim. If the court finds, based upon clear and
convincing evidence, that such restitution shall work an undue hardship on the defendant and
his family, the court may waive the making of such restitution, in whole or in part. The court
is authorized to monitor such payment of restitution by setting penalty hearing at reasonable
intervals to receive reports of partial payments made and, for this purpose, may continue the
penalty hearings. If the defendant fails to make restitution as ordered by the court, any
sentence imposed will include unsuspended confinement of not less than thirty (30) days for
an adult defendant. The court has the authority to delay imposing a punishment until either
the defendant has satisfied the paying of restitution or the court has determined that
no restitution will be paid. The requirement of restitution shall be deemed satisfied if the
defendant presents a signed "release" from the victim to the Clerk of the Court upon a form
provided by the prosecuting attorney. The Clerk and/or the prosecuting attorney may contact
the victim to verify the authenticity of the execution of the "release" prior to satisfaction of
the requirement of restitution. If no request is made within the 91-day period, restitution is
waived unless the court extends the request period for extenuating circumstances.
B. When as a result of a plea bargain agreement or when a defendant is ordered to
make restitution pursuant to subsection A above, the City Attorney's Office supervising the
collections of such restitution may assess a reasonable charge to the defendant upon receiving
of a bad check as restitution payment, such charge to be based upon the reasonable cost of
processing a request for and obtaining the payment due from the defendant. For this section,
a "bad check" means a check or similar site order for the payment of money which is
dishonored by the bank or other drawee because the issuer does not have sufficient funds
upon deposit with the bank or other drawee to pay the check or order upon presentation within
thirty (30) days after issue.
C. Upon a determination by the court that the defendant had a liability insurance policy in
effect at the time of the injury or the damage or loss of property resulted to another and such
injury, damage, or loss was reported to such insurance policy company, and the identity of
that insurance policy and company has been made known to the victim, the court shall find
that further restitution is not required, provided that the liability insurance policy was equal
to or greater than the amount of injury, damage, or loss.
D. The terms and provisions of this section shall not preempt the rights, if any, of persons
to seek or resist civil remedies in any court of law.
BE. Both The defendant and the victim, personally or by an attorney, may have standing to
present evidence and argument for the court’s consideration to the court on the issue
of restitution but the court has complete discretion to limit such evidence and argument
pursuant to its own rules and may choose not to conduct a restitution hearing separate from
the defendant's sentencing.
CF. Englewood Municipal Court shall be responsible for collecting restitution payments
from or on behalf of defendants found guilty of ordinance violations and disbursing the same
to the victims. Restitution assessed by the Court and unpaid within a reasonable time may
be collected pursuant to EMC § 1-4-4. A Municipal Court Order of Restitution also may be
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enforced by the victim as a civil judgment, but in no event shall the victim be compensated
more than actual damages sustained.
Section 2. General Provisions Applicable to this Ordinance
The following general provisions and findings are applicable to the interpretation and application
of this Ordinance:
A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application
thereof to any person or circumstances shall for any reason be adjudged by a court of competent
jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this
Ordinance or its application to other persons or circumstances.
B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or
conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such
inconsistency or conflict.
C. Effect of repeal or modification. The repeal or modification of any provision of the Code
of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change
in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have
been incurred under such provision, and each provision shall be treated and held as still remaining
in force for the purposes of sustaining any and all proper actions, suits, proceedings, and
prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose
of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in
such actions, suits, proceedings, or prosecutions.
D. Safety Clauses. The City Council hereby finds, determines, and declares that this
Ordinance is promulgated under the general police power of the City of Englewood, that it is
promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and welfare.
The City Council further determines that the Ordinance bears a rational relation to the proper
legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right
to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47.
E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the
City’s official website, or both. Publication shall be effective upon the first publication by either
authorized method.
F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and
directed to execute all documents necessary to effectuate the approval authorized by this
Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the
Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to
execute the above-referenced documents. The execution of any documents by said officials shall
be conclusive evidence of the approval by the City of such documents in accordance with the terms
thereof and this Ordinance. City staff is further authorized to take additional actions as may be
necessary to implement the provisions of this Ordinance.
G. Enforcement. To the extent this ordinance establishes a required or prohibited action
punishable by law, unless otherwise specifically provided in Englewood Municipal Code or
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applicable law, violations shall be subject to the General Penalty provisions contained within
EMC § 1-4-1.
Introduced, read in full, and passed on first reading on the 3rd day of January, 2023.
Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 5th day
of January, 2023.
Published as a Bill for an Ordinance on the City’s official website beginning on the 4th
day of January, 2023 for thirty (30) days.
Read by Title and passed on final reading on the 6th day of February, 2023.
Published by Title in the City’s official newspaper as Ordinance No. 09, Series of 2023,
on the 9th day of February, 2023.
Published by title on the City’s official website beginning on the 8th day of February,
2023 for thirty (30) days.
This Ordinance shall take effect thirty (30) days after publication following final passage.
Othoniel Sierra, Mayor
ATTEST:
Stephanie Carlile, City Clerk
I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the
above and foregoing is a true copy of the Ordinance passed on final reading and published by
Title as Ordinance No. 09, Series of 2023.
Stephanie Carlile
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