Print Staff Memo

TO:

Honorable Mayor and Members of the Common Council

FROM:

Lynn Lorenson, City Attorney

DATE:

September 10, 2024

SUBJECT:

Ord 24-501 Amend Section 13-6 of the City of Oshkosh Municipal Code Pertaining to Fireworks; and Amend Sections 13-20 and Create Section 13-21 of the City of Oshkosh Municipal Code Pertaining to Penalties for Violations of Chapter 13 for Adult and Juvenile Offenders and to Specifically Amend the Forfeiture for Violation of Ordinances Pertaining to the Possession and Use of Fireworks

BACKGROUND

At the August 14, 2024, meeting, the Common Council directed preparation of an ordinance to increase the penalties for violation of the ordinance pertaining to the possession and use of fireworks to one thousand dollars ($1000.00). During discussion of the ordinance at its first reading on August 27, 2024, a majority of the council indicated a willingness to entertain a tiered forfeiture for violations that may be more in line with other city forfeitures.

The City's established base forfeiture for violations when not specifically established by a particular ordinance is $75 plus costs for adults (for a total of $232) and $50 for juveniles (for a total of $55). It is not uncommon to have tiered forfeitures. Typically, one might expect to see a progressive range of forfeitures with two to three steps, with any further violations in the same year being subject to the same amount. As discussed at the August 27, 2024, meeting, because of the seasonal nature of these types of violations for fireworks use, it makes sense in this case to stretch that within one year time span to up to 3 years to recognize that seasonal nature and maintain a reasonable lookback period.

The Council requested that the Police Chief work with the City Attorney to propose a draft amendment incorporating a tiered forfeiture system for both adults and juveniles for consideration at the second reading of the proposed ordinance.

ANALYSIS

Staff understands that the Council would like to emphasize fireworks offenses and their potentially serious effects on the quality of life of others. To that end, staff reviewed the adult and juvenile forfeitures and in particular, with regard to adults, equated this to the nuisance types of actions. The forfeiture for maintaining a public nuisance in the municipal code is a tiered scale of $75 – 1st offense, $125 – 2nd offense, $225 – 3rd offense and $500 — each subsequent offense within a year. Typical nuisance offenses are not seasonal in the same manner as fireworks, but continuing with each day of violation being counted as a separate offense. Based on the Council's goals in regard to fireworks and the city's forfeiture schedule, with particular note of the nuisance violations, staff proposes a 3-tiered scale counted over the course of 3 years in the following amounts: $125 – 1st offense, $225 – 2nd offense and $1000 — each subsequent offense

For juveniles – the ordinance does not lay out a nuisance violation since juveniles are not typically the owners and responsible for properties that may become a nuisance; instead staff looked at the overall juvenile forfeiture scale and recommends a 3-tier scale counted over the course of 3 years in the following amounts: $100 – 1st offense, $150 – 2nd offense and $500 — each subsequent offense. The $100 amount for a first offense is double the base juvenile forfeiture of $50 for most offenses in the code. $150 represents a step up from that amount and we recommend capping the juvenile forfeiture at $500. Forfeitures in higher amounts may tend not to be paid at all or may be paid by parents resulting in no consequence to the actual juvenile in violation.

Incorporation of a Tiered Forfeiture for Violations

Should the council wish to amend the ordinance to establish a tiered forfeiture schedule, staff would recommend:

"I move to amend the proposed ordinance to provide for a tiered forfeiture schedule for violations of section 13-6 relating to possession or use of fireworks to provide:

a $125 forfeiture for a first violation, $225 for a second and $1000 for a third and subsequent violations within a three year period for adult violators and
for $100 for a first violation, $150 for a second and $500 for third and subsequent violations within a three year period for juvenile violators."

If the amendment would pass, staff would amend the paragraphs within the penalties section of the ordinance to reflect the forfeitures established by the amendment.

Staff also noted Council's desire to review the entire forfeiture schedule and has started the process to gather and review that information. As noted at the August 27th meeting, the City has a significant number and variety of forfeitures. Because all of the forfeitures are not located in one location it will take some time to compile and review that information; however, staff wanted to inform Council that we have begun that process.

Attachments

ORD 24-501

2024 08 27 Staff Memo re Fireworks

Fireworks Forfeiture Ordinance Amendment - clean

Fireworks Forfeiture Ordinance Amendment - redline