Ordinance Enforcement

Introduction

An “ordinance” is defined in KRS 83A.010(11) as “. . . an official action of a city legislative body, which is a regulation of a general and permanent nature and enforceable as a local law or is an appropriation of money.”

City legislative bodies enact ordinances for a variety of purposes. Among other things, ordinances are used to impose taxes, levy special assessments, create and regulate franchises, and authorize the borrowing of money. Perhaps, most importantly, city legislative bodies use ordinances to impose regulations designed to protect the health, safety and welfare of their citizens. These “police power” ordinances are intended to compel or prohibit certain conduct by all persons, or classes of persons, within the jurisdiction in order to maintain a high, constant quality and standard of life. Typical ordinances in this category include: general nuisance regulations, animal control regulations, unsafe and unfit structures codes, littering regulations, flood prevention regulations, and many more. A common dilemma for city officials is how to effectively enforce these “police power” ordinances so that they will have the desired affects within their community.

The methods available to cities for ordinance enforcement are established in the Kentucky Revised Statutes. Kentucky law offers several options. Some are general and apply to all types of ordinances; others are limited to specific categories of ordinances.

The foundation for city ordinance enforcement efforts is found in KRS 83A.065.

KRS 83A.065

Because it is such a basic component of any general discussion of ordinance enforcement, the language of KRS 83A.065 is set forth in full below:

  1. Every city shall have the power to establish fines, penalties, and forfeitures that may be imposed for violation of its ordinance, and may secure injunctions and abatement orders, when appropriate, to insure compliance with its ordinances.
  2. A city may make the violation of any of its ordinances a misdemeanor or a violation by the express terms of the ordinance. When an offense is designated by ordinance as a misdemeanor, a criminal fine not to exceed the amounts set forth in KRS 534.040(2)(a), or a term of imprisonment not to exceed the periods set forth in KRS 532.090(1), or both, may be imposed for the offense. When an offense is designated by ordinance as a violation, a criminal fine not to exceed the amounts set forth in KRS 534.040(2)(c) may be imposed for the offense.
  3. If an ordinance fails to prescribe any penalty for noncompliance with its provisions, any noncompliance shall be deemed a violation and a criminal fine not to exceed the amount set forth in KRS 534.040(2)(c) may be imposed for the offense.
  4. As an alternative to or in conjunction with the criminal penalties authorized by subsection (2) of this section, an ordinance may provide by its express terms that a violation shall subject the offender to a civil penalty to be recovered by the city in a civil action in the nature of debt if the offender does not pay the penalty within a prescribed period of time after he has
  5. been cited for the violation of the ordinance.
  6. A city ordinance may provide a fine, penalty, forfeiture, or term of imprisonment for an act or omission to act which is also an offense under the Kentucky Revised Statutes. In that case, the fine, penalty, forfeiture, or term of imprisonment imposed by the ordinance shall not be less than or greater than that imposed by statute for the same offense.
  7. A city ordinance may provide, when appropriate, that each day a violation of the ordinance continues shall be a separate and distinct offense.
  8. Subject to the express terms of the ordinance, a city ordinance may be enforced by any one (1), all, or a combination of the remedies authorized by this section.
  9. Except where the charge of a violation of a city ordinance is joined with an indictment for a felony as provided in KRS 24A.110(2), the violation of all city ordinances prescribing a criminal penalty as authorized in subsection (2) of this section shall be prosecuted in the District Courts of the Commonwealth. The county attorney shall prosecute all violations of city ordinances for which the criminal penalties authorized by subsection (2) of this section may be imposed. The city attorney shall pursue all violations of ordinances for which a civil penalty or forfeiture may be imposed, or involving injunctive relief or abatement, by filing a petition with the court of appropriate jurisdiction. Nothing in this section shall be intended to preclude any remedy for the violation of a city ordinance, including any administrative remedy, authorized by any other statute.

KRS 83A.065 is a relatively new statute; it was first enacted in 1992. It codifies the most common method of compelling obedience to city ordinances, i.e., by the imposition of penalties for their violation. Prior to the adoption of KRS 83A.065, it was accepted at common law that cities had this power by implication. See Louisville v. Fischer Packing Company, Ky., 520 S.W. 2d 744 (1975).

As authorized by this statute, a city may declare that an ordinance violation is a criminal or civil offense and establish a criminal or civil penalty. If a violation is deemed a criminal offense, the penalty may include not only a monetary fine, but a term of imprisonment. If a violation is deemed civil, only a civil fine may be imposed. There is no statutory limit on the amount of the civil fine that may be imposed.

Kentucky cities have typically sought to secure obedience to ordinances by imposing criminal penalties for their violation. Prior to 1976, ordinance enforcement proceedings were brought in city police courts. Beginning in January 1976, however, when the judicial power of the Commonwealth was first unified in our present three-tiered state court system, local police courts were abolished; thereafter, all ordinance enforcement proceedings were required to be brought in the district courts of the Commonwealth. This mode of procedure is continued under KRS 83A.065(8).

As stated in subsection (8) of KRS 83A.065, if a city imposes a criminal penalty for the violation of an ordinance, the penalty must be enforced in a proceeding brought in district court. The county attorney acts as the prosecutor in all such proceedings. Under KRS 431.100(1), if the district court imposes a criminal fine as a result of an ordinance violation, the fine must be paid to the Commonwealth. The only exception involves fines imposed for parking violations. KRS 65.120 allows parking fines to be retained by the local governmental entity, if the governmental was receiving such fines on December 31, 1976, unless the fine is collected as a result of action taken in the district court.

As an alternative to criminal penalties, a city may declare that an ordinance violation is a civil offense and impose a civil penalty (fine) for the violation. In this case, the civil fine may be made payable directly to the city within a specified time period. See KRS 83A.065(4). If an offender fails or refuses to pay the civil fine to the city within the prescribed time period, the city is authorized, through its city attorney, to institute a civil action in the appropriate court (depending upon the amount at issue) and collect the penalty from the offender as it would a debt owed to the city.

In addition to authorizing criminal and/or civil penalties as a means of obtaining compliance with city ordinances, KRS 83A.065 also allows a city to seek injunctive relief and abatement orders from the courts, when appropriate. The enforcement methods authorized by KRS 83A.065 may be used by all classes of cities and with all types of ordinances.

The enforcement methods authorized by KRS 83A.065 ultimately require all ordinance enforcement to take place within the context of the state judicial system, specifically the district courts.

Difficulties with ordinance enforcement through the state judicial system caused city governments to seek more effective, less expensive ordinance enforcement methods. As a result, alternative methods began to develop over the years.

The Local Government Parking Citation Enforcement Act

Due to problems associated with the enforcement of motor vehicle parking regulations through the state court criminal processes, in 1984, the Kentucky General Assembly created an alternative process for the enforcement of municipal “parking ordinances.”

The Local Government Parking Citation Enforcement Act can be found at KRS 82.600 to 82.640. This law gives a city the option to initially enforce parking ordinances as civil violations through a non-judicial process, rather than as criminal offenses in the district courts. If a city elects to use this enforcement scheme, the city must establish a hearing body of one (1) or more persons to conduct hearings on contested motor vehicle parking violations. When a motor vehicle parking citation is issued, the alleged violator has the option of not contesting the citation and simply paying the fine to the city If the alleged violator decides to contest the citation, the hearing board decides the case following a hearing. If the board determines no violation was committed, the citation is dismissed.

If the board determines that a violation was committed, the vehicle owner is ordered to pay the fine. Decisions of the hearing board may be appealed to the county district court. The Act also sets forth requirements related to the impoundment of motor vehicles and gives cities a lien on impounded motor vehicles for all fines, penalties and fees related to the violation and the impoundment of the vehicle.

The Parking Citation Enforcement Act is very similar in concept and function to the new Local Government Code Enforcement Board Act; however, it is much more limited in scope, since it may only be used to enforce parking ordinances and may only be used by cities of the first four classes and urban county governments.

The Local Government Nuisance Code Enforcement Act

In 1992, the state legislature enacted The Local Government Nuisance Code Enforcement Act, KRS 82.700 to 82.725. This series of statutes offers cities of the first and second class the option of enforcing nuisance ordinances through a non-judicial process as civil offenses. Once again, the impetus for the creation of this alternative, non-judicial, civil process was the difficulties being experienced with ordinance enforcement through the normal criminal processes of the state court system.

If a city chooses to utilize the alternative enforcement process set forth in the Nuisance Code Enforcement Act, it must create a hearing board composed of one (1) or more persons that has the authority to hear contested nuisance ordinance violations. Appeals from decisions of the hearing body can be made to the county district court. KRS 82.720 gives cities a lien on property involved in the violation for all fines, penalties and fees imposed as a result of the violation.

Again, the Nuisance Code Enforcement Act is very similar in concept and function to the new Local Government Code Enforcement Board Act. The drawback is that the nuisance code enforcement process is limited to cities of the first and second class, and it applies only to the enforcement of nuisance ordinances.

The Local Government Code Enforcement Board Act

The Local Government Code Enforcement Board Act (Code Board Act), KRS 65.8801 to 65.8839, is the latest and most far-reaching attempt to give Kentucky local governments a more effective and less expensive alternative to the state judicial system for ordinance enforcement.

The Code Board Act is a product of the continuing problems that local governments, particularly cities, have experienced since 1976 with their efforts to effectively enforce ordinances through the district courts. If the new law proves to be a viable enforcement mechanism that is widely used by our local governments, it will lessen the burden on the state court system and, at the same time, help improve ordinance compliance and, thus, the quality of life within local communities.

The decision by a city to use the ordinance enforcement process set forth in the Code Board Act is purely optional. The Act clearly states in KRS 65.8801 that the code board process is an “additional or supplemental means of obtaining compliance with local government ordinances.” It further states in that statute that “nothing contained in KRS 65.8801 to 65.8839 shall prohibit the enforcement of local government ordinances by any other means authorized by law.”

In other words, cities are free to pick and choose the ordinance enforcement method that best fits their circumstances. A city may decide to use the court system to enforce one type of ordinance, while using the code board process to enforce another type of ordinance. For instance, a city could decide to enforce its existing housing code through the code board process, its motor vehicle parking ordinances through the parking citation enforcement process, and the remainder of its ordinances through the criminal processes of the county district court. Unlike the Parking Citation Enforcement Act and the Nuisance Code Enforcement Act, the code board process can be used by every class of city.

Furthermore, with a few exceptions, the process can be used to enforce most types of city ordinances. It is entirely up to each individual city to determine which method of ordinance enforcement best suits the city’s needs and circumstances.

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