HomeMy WebLinkAboutA003 - Legal opinion, August 7, 1984 IV
M E M O R A N D U M
TO: Steve Schainker, City Manager
FROM: John R. Klaus, City Attorney�k
DATE: August 7, 1984
SUBJECT: Minimum Fine and Fine for Each Day of Continuing Noncon-
formance With an Ordinance
In connection with consideration of new regulations for the keeping of
"unused" and "junk" motor vehicles you ask:
1. Can the Council lawfully set a minimum fine below which the
court may not go in punishing an ordinance violation?
2. Can the Council lawfully punish each day of nonconformance as
a separate offense subject to the minimum fine?
The Iowa Supreme Court has not ruled on either. I am relatively opti-
mistic that the first measure could be sustained and relatively pessi-
mistic about the latter.
It was squarely held by the Court of Appeals of Michigan that a city
ordinance setting a mandatory minimum fine for unauthorized possession
of a firearm of $400.00 was valid under a state law which limited fines
for ordinance violations to:
". . . a fine of $500.00 or imprisonment for 90 days,
or both, in the discretion of the court."
The Michigan court said:
"We do not read the language as imposing a restric-
tion on a city's authority to provide for a manda-
tory minimum penalty for violation of its
ordinances.
x x x
The power to fix minimum and maximum penalties is in
the Legislature, and we find no logical reason for
differentiating between state and municipal
legislatures."
The Iowa court has upheld minimum sentencing for state law and, there-
fore, if it follows the example set by the Michigan court, would uphold
minimum sentencing under city ordinances.
The leading case on assessing a separate fine for each day of noncom-
pliance with an ordinance requirement is Village of Southhampton
v. Platt, 373 N.E.2d 1229, 1230 (N.Y. 1978) . In this case, the Court of
Appeals of New York held that where state law authorizes the municipal-
ity to enforce ordinances by prescribing: "fines for each violation
thereof not to exceed two hundred fifty dollars", the law "does not
permit imposition of cumulative fines in excess of $250.00 for a single
but continuing violation". The court cited with approval a lower court
decision in the case of Incorporated Village of Mill Neck v Fronsdal,
39 AD2d 549, 550, 332 N.Y.S. 2d 53, 55 (1972) in which it was held that
operating a business in a commercial zone was one offense for which the
state law permitted only one fine up to $250.00 in spite of a provision
in the zoning ordinance imposing a minimum penalty of $100.00 for each
day a violation continued.
bw
2