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HomeMy WebLinkAbout848_Intentional Making obscene_Indecent_Harassing_Phone Calls_Other Electronic TransmissionsTulsa Courity Clerk- EARLENE WILSON Doc ## 2006045532 Pages 3 Receipt ## 858316 04/24/06 12:32:13 Fee 17.00 CITY OF OWASSO, OKLAHOMA ORDINANCE NO. 848 AN ORDINANCE RELATING TO PART 10, OFFENSES & CRIMES, CHAPTER 4, OFFENSES AGAINST THE HEALTH, WELFARE AND MORALS, OF THE CODE OF ORDINANCES OF THE CITY OF OWASSO, OKLAHOMA, AMENDING SAME BY PROHIBITING THE INTENTIONAL MAKING OF OBSCENE, INDECENT OR HARASSING TELEPHONE CALLS OR ELECTRONIC TRANSMISSIONS BY COMPUTER OR OTHER MEANS. THIS ORDINANCE AMENDS PART 10, CHAPTER 4, OF THE CITY OF OWASSO CODE OF ORDINANCES BY ADDING A NEW SECTION TO BE CODIFIED AS SECTION 10- 420, OBSCENE AND HARASSING TELEPHONE CALLS AND OTHER ELECTRONIC TRANSMISSIONS. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT, TO-WIT: SECTION ONE (1): Part Ten, Offenses & Crimes, Chapter Four, Offenses Against the Health, Welfare and Morals, of the Code of Ordinances of the City of Owasso, Oklahoma, shall be amended by providing and codifying as follows: SECTION 10-420 OBSCENE AND HARASSING TELEPHONE CALLS AND OTHER ELECTRONIC TRANSMISSIONS. SECTION TWO (2): A. It shall be unlawful for a person to, by means of a telephone, willfully either: (1) Make any comment, request, suggestion or proposal which is obscene, lewd, filthy or indecent; (2) Make a telephone call, whether or not conversation ensues, with intent to put the party called in fear of physical harm or death; (3) Make a telephone call. whether or not conversation ensues, without disclosing his or her identity and with the intent to annoy, threaten, or harass any person at the called number; (4) Knowingly permit any telephone under his or her control to be used for any purpose prohibited by this section; and (5) In conspiracy or concerted action with other persons, make repeated calls or simultaneous calls solely to harass any person at the called number(s). B. Use of a telephone facility under this section shall include all use made of such a facility between the points of origin and reception. Any offense under this ordinance is a continuing offense and shall be deemed to have been committed at either the place of origin or the place of reception. C. No person, through the use of any electronic method of transferring information, including, but not limited to, any computer, computer network, computer program, computer system, or cellular telephone shall post a message, including posts on the Internet or a computer network, send electronic mail, an instant message, a text message, a personal digital assistant message, or a pager message, or otherwise willfully communicate using a computer or other method of electronic information transmission with any person with an intent to annoy, abuse, threaten or harass such person. Neither shall any person make any suggestion or communication using an electronic method of transferring or posting information which is obscene, lewd, filthy or indecent, or with any intent to put the person contacted in fear of physical harm or death. (State Law Reference; Obscene, Threatening or Harassing Telephone Calls - Penalty, 21 O. S. § 1172.) D. All ordinances, or parts of ordinances, in conflict with this ordinance are hereby repealed to the extent of the conflict only. Ea If any part or parts of this ordinance are deemed unconstitutional, invalid or ineffective, the remaining portion shall not be affected but shall remain in full force and effect. F. The provisions of this ordinance shall become effective thirty (30) days from the date of final passage as provided by state law. G. The City of Owasso Code of Ordinances is hereby amended by adding a new ordinance to be codified in Part 10, Chapter 4, as section 10 -420. PASSED and APPROVED by the City Council of the City of Ow4 o, Oklahoma on , is I sth day of April, 2006. Sherry Bisho gOIRV ferk, APPROVE this day of 2006. Julie Lombardi City Attorney STATE OF OKLAHOMA, TULSA COUNTY, ss. APRIL 25TH, 2006 Subscribed and sworn to be?re me this 26TH Notary Public My Commission expires: Published in the Owasso Reporter, Owasso, Tulsa County, Oklahoma, April 25, 2006. CITY OF OWASSO, OKLAHOMA ORDINANCE NO. 848 AN ORDINANCE RELAT- ING TO PART 10, OFFENSES & CRIMES, CHAPTER 4,OFFENS- ES AGAINST THE HEALTH, WELFARE AND MORALS, OF THE CODE OF ORDINANCES OF THE CITY OF OWAS- SO, OKLAHOMA, AMENDING SAME BY PROHIBITING THE INTENTIONAL MAKING OF OBSCENE, INDE- CENT OR HARASSING TELEPHONE CALLS OR ELECTRONIC TRANS- MISSIONS BY COMPUT- ER OR OTHER MEANS. THIS ORDINANCE AMENDS PART 10, CHAPTER 4, OF THE CITY OF OWASSO CODE OF ORDINANCES BY ADDING A NEW SECTION TO BE CODIFIED AS SECTION 10 -420, OBSCENE AND HARASSING TELEPHONE CALLS AND OTHER ELEC- TRONIC TRANSMISSIONS. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT, TO -WIT: SECTION ONE (1): Part Ten, Offenses & Crimes, Chapter Four, Offenses Against the Health, Welfare and Morals, of the Code of Ordinances of the City of Owasso, Oklahoma, shall be amended by providing and codifying as follows: SECTION 10 -420 OBSCENE AND HARASSING TELEPHONE CALLS AND OTHER ELECTRONIC TRANSMISSIONS. SECTION TWO (2) A. It shall be unlawful for a per- son to, by means of a tele- phone, willfully either: (1 Make any comment. request, suggestion or proposal which is obscene, lewd, filthy or inde- cent; (2)Make a telephone call, whether or not conversation ensues, with intent to put the party called in fear of physical harm or death; (3)Make a telephone call. whether or not conversation ensues, without disclosing his or her identity and with the intent to annoy, abuse, threat- en, or harass any person at the called number; (4) Knowingly permit any telephone under his or her con- trol to be used for any purpose prohibited by this section; and (5) In conspiracy or concerted action with other persons, make repeated calls or simultaneous calls solely to harass any per- son at the called number(s). B. Use of a telephone facility under this section shall include all use made of such a facility between the points of origin and reception. Any offense under this ordinance is a con- tinuing offense and shall be deemed to have been commit- ted at either the place of origin or the place of reception. C. No person, through the use of any electronic method of transferring information, includ- ing, but not limited to, any com- puter, computer network, com- puter program, computer sys- tem, or cellular telephone shall Post a message, including posts on the Internet or a com- puter network, send electronic mail, an instant message, a text message, a personal digital assistant message, or a pager message, or otherwise willfully communicate using a computer or other method of electronic information transmission with any person with an intent to annoy, abuse, threaten or harass such person. Neither shall any person make any sug- gestion or communication using an electronic method of trans- ferring or posting information which is obscene, lewd, filthy or indecent, or with any intent to Put the person contacted in fear of physical harm or death. (State Law Reference: Obscene, Threatening or Harassing Telephone Calls - Penalty, 21 O. S. §1172.) SECTION THREE (3): REPEALER D. All ordinances, or parts of ordinances, in conflict with this ordinance are hereby repealed to the extent of the conflict only. SECTION FOUR (4): SEVERABILITY E. If any part or parts of this ordinance are deemed uncon- stitutional, invalid or ineffective, the remaining portion shall not be affected but shall remain in full force and effect. SECTION FIVE (5): DECLARING AN EFFECTIVE DATE F The provisions of this ordi- nance shall become effective thirty (30) days from the date of final passage as provided by state law. SECTION SIX (6): CODIFICATION G. The City of Owasso Code of Ordinances is hereby amended by adding a new ordinance to be codified in Part 10, Chapter 4, as section 10 -420. PASSED and APPROVED by the City Council of the City of Owasso, Oklahoma on this 18th day of April 2006 . /s /Craig Thoendel Mayor ATTEST: /s /Sherry Bishop City Clerk APPROVED as to form: /s /Julie Lombardi City Attorne MEMORANDUM TO: THE HONORABLE MAYOR AND CITY COUNCIL CITY OF OWASSO FROM: JULIE TROUT LOMBARDI CITY ATTORNEY SUBJECT: ORDINANCES REQUESTED BY THE OWASSO POLICE DEPARTMENT DATE: APRIL 18, 2006 BACKGROUND The Owasso Police Department has recommended amendment and enactment of City ordinances addressing several areas of traffic and criminal offenses. These requests have been made 1) in an effort to align our local code of ordinances with statutory state law, 2) to enable and authorize prosecution of selected offenses within the City of Owasso's Municipal Court System rather than by referral to the District Attorney for prosecution in the District Court of Tulsa County, and 3) to better enable the Owasso Police Department in its efforts to provide law enforcement services. Officers within the department have noted areas of law enforcement in which the Owasso Code of Ordinances is either silent, insufficiently comprehensive or conflicts with state law. In an effort to resolve these omissions and disparities within our Code, enactment and amendment of the ordinances discussed below is recommended. Adoption of the proposed ordinances allows offenders to be prosecuted within our municipal court rather than requiring that the matter be forwarded to the Tulsa County District Attorney. While the police department has authority to issue citations or make arrests for violations of state statutes, including those discussed below, the matter cannot be prosecuted within Owasso's Municipal Court System. This issue is of importance because the District Attorney has declined to prosecute various offenses in a number of instances, thereby leaving the Owasso Police Department without an alternative avenue of prosecution. The department has been hampered in its efforts to prevent certain types of conduct because the Owasso Code of Ordinances does not directly address or prohibit the conduct, and the District Attorney is reluctant to prosecute these types of matters due to time, personnel and money constraints, as well as overcrowded dockets within the State court system. As a result, officers within our department are unable to effectively enforce the law. In addition to these concerns, officers are at times unable to issue valid and justifiable citations because the Owasso Code of Ordinances does not contain an on -point ordinance. In that instance, the department is faced with the choice of either declining to issue a citation, or citing the offender for an offense which is "close to" the offending conduct but which does not precisely prohibit the offender's actions. Prosecution under a "close to" offense consistently is 1 subject to dismissal within the court system and thereby inhibits and obstructs the department's efforts to provide effective law enforcement services. DISCUSSION OF ORDINANCES A. Obscene, Harassing Telephone Calls and other Electronic Transmissions This ordinance is designed to prohibit obscene, harassing, annoying, abusive or threatening suggestions or proposals by use of land line and cellular telephones or any electronic method, including computer systems, email, instant messaging, text messaging, internet posting or personal digital assistants (PDAs). This ordinance additionally prohibits a person from knowingly permitting any other person to use a telephone or computer under their control to send communications of this type, or acting in conspiracy with another person for purposes of harassment. This ordinance substantially mirrors its counterpart state statute, 21 O.S. §1172, Obscene, Threatening or Harassing Telephone Calls — Penalty, which was first enacted in 1969 and has been amended throughout the years. However, in addition to the statutory provisions of 21 O.S. §1172, language has been added to this ordinance broadening its scope to include messages sent by computer and other technological means. B. Rear License Plate Lamps Proposed Section 15 -310 is a virtual copy of 47 O.S. §12 -204.1 which became effective on November 1, 2005. The ordinance prohibits an automobile from having more than two (2) white lights to illuminate a rear license plate tag, and thereby eliminates the use of color, neon or flashing lights around a tag. The police department believes that these types of neon or flashing lights require restriction due to 1) the difficulty officers experience when trying to accurately read the license tag number, and 2) the dangers presented by the distraction of motorists driving behind or near an automobile equipped with lights of this type. C. Contributing to the Delinquency of a Minor This ordinance is intended to assist the police department in the protection of minor children. The provisions of this ordinance make it unlawful for any person to commit any act which would aid or assist a juvenile in acts of delinquency, and prohibits any other act which would render the minor dependent and neglected. This ordinance is intended to provide police officers with a means to charge those of adult age who purchase alcohol for minors, encourage or allow minors to have parties involving alcohol or drugs on their premises, or encourage or assist runaway minors. The proposed ordinance combines the primary provisions within two (2) state statutes, 21 O.S. §858.1, Parent - Causing Delinquency — Punishment, and 21 O.S. §858.3, Other Person Aiding in Delinquency of Minor — Penalty. Both statutes have been a part of the Oklahoma Juvenile Code for a number of years and have withstood numerous court challenges. 2 D. Approaching a Stationary Emergencv Vehicle This ordinance replicates state statute 47 O.S. §11 -314, Driver of a Motor Vehicle Approaching a Stationary Emergency Vehicle, and is intended to establish a requirement that motorists, if possible and feasible, move to a lane which is not adjacent to a stationary emergency vehicle with emergency lights in use. Emergency personnel are often placed in danger while working a roadside accident or traffic stop if passing motorists continue traveling in the lane adjacent to the place where the emergency vehicle has stopped. The proposed ordinance additionally provides that a motorist shall proceed with due caution and reduced speed if a change of lanes is not possible. E. Outraging Public Decency This ordinance would allow the police department to issue citations for conduct which is injurious to public peace and health but not otherwise prohibited by any ordinance within the code. Urination in public is representative of the conduct sought to be prohibited. This ordinance replicates state statute 21 O.S. §22, Acts Resulting in Gross Injury, which has been codified within the state statutory scheme for many years. F. Repeal of Section 10 -307 — Display of Guns Unlawful State statute 21 O.S. §1289.24, Firearm Regulation — State Preemption, mandates repeal of our current ordinance. The City of Owasso ordinance currently states as follows: 10 -307 It is unlawful for any person, firm or corporation to display or exhibit in any show window, or shop window, in the city any pistol, revolver, dirk, bowie knife, dagger, slingshot, billy, brass, iron or other metal knuckles or any similar dangerous or deadly weapon capable of being carried concealed about the person. The purpose of the above ordinance is to prevent the display of guns and other weapons for sale within city limits. While this may be desirable, a municipality may not enact legislation concerning the sale, purchase, use, etc. of firearms. Regulation within this area has been preempted by the state in 21 O.S. § 1289.24(B) and is thereby solely under the jurisdiction of the state legislature. Exceptions are included within the state statute, none of which are relevant to this ordinance. The governing state statute, 21 O.S. §1289.24(B) reads as follows: No municipality or other political subdivision of this state shall adopt any order, ordinance, or regulation concerning in any way the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, carrying, bearing, transportation, licensing, permit, registration, taxation other than sales and compensating use taxes, or other controls on firearms, components, ammunition, and supplies. 3 This statute compels repeal of section 10 -307 of the Owasso Code of Ordinances. It should be noted that while the City is prohibited by state statute from adopting ordinances regulating firearms, nothing within state law prevents City of Owasso police officers from issuing citations or making arrests for violations of the state law. Succinctly stated, we may not regulate the use or possession of firearms, but our police department may enforce state law. G. Amendment of Section 10 -306 Transporting Concealed Handguns City of Owasso Code Section 10 -306 currently reads as follows: A. It is unlawful for any person, except those persons authorized by law, to carry upon or about his person or in his vehicle or automobile any pistol, revolver, weapon of the kind usually known as air pistol or air gun, or weapon of the kind usually known as slingshot, bowie knife, dirk knife, switchblade knife, spring -type knife, knife having a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon. B. Notwithstanding the provisions of Subsection A of this section, persons shall be permitted to carry within the city shotguns, rifles or air guns which are not concealed, if within a reasonable time they are carried from the city, or being carried for the purpose of having them repaired, or for the purpose of using the same in a public muster or military drills, or returning from hunting trips. As noted above, 21 O.S. §1289.24(B) expressly preempts enaction of ordinances by municipalities regulating firearm purchase, carrying or usage. For that reason, it is recommended that Section 10- 306(A) be amended and the provisions disallowing the carrying of any type of firearm removed. All other provisions preventing the carrying of knives, metal knuckles, etc., have been retained within 10- 306(A). Paragraph (B) of 10 -306 also falls within the preemptive reach of 21 O.S. §1289.24(B) and removal of its current language is recommended for that reason. It has been amended to provide, as is allowed by 21 O.S. §13A(A), that a person stopped pursuant to a moving traffic violation who is transporting a loaded pistol without a valid permit may be fined $70.00 or any other amount set forth in 21 O.S. §1289.13A(A). The proposed amendment also states, as again permitted by 21 O.S. § 1289.13A, that the weapon shall not be confiscated unless it is contraband or has been used in the commission of a crime. The relevant state statutes have created a confusing set of rules governing the types of ordinances a municipality may and may not promulgate regarding firearm possession and transportation. Simplified, the general rule is that a municipality may make no rule or regulation regulating firearms except that it may adopt the provisions of 21 O.S. §1289.13A imposing a $70.00 fine for transporting a handgun and stating that the weapon will not be confiscated unless it is m contraband or has been used to commit a crime. Staff proposes amendment of current Section 10 -306 to conform to this state statute. RECOMMENDATION The staff recommends City Council approval of the attached ordinances. ATTACHMENTS 1. Ordinance No. 848 -- Obscene, Harassing Telephone Calls and other Electronic Transmissions 2. Ordinance No. 849 -- Rear License Plate Lamps 3. Ordinance No. 850 -- Contributing to the Delinquency of a Minor 4. Ordinance No. 851 -- Approaching a Stationary Emergency Vehicle 5. Ordinance No. 852 -- Outraging Public Decency 6. Ordinance No. 853 -- Display of Guns Unlawful (Repeal) 7. Ordinance No. 854 — Carrying Weapons and Exceptions; Transporting Concealed Handguns