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Item 7A DPS EPARTMENT OF UBLIC AFETY M E M O R A N D U M December 29, 2008 TO: Shana Yelverton, City Manager FROM: Robert Finn, Fire Chief SUBJECT : Ordinance No. 952, 1st Reading, amending Chapter 18 “TRAFFIC AND VEHICLES,” of the Southlake Code of Ordinances, by adding a new section to ARTICLE I, “Use of Hand-Held Communication Devices Prohibited in School Zones” Purpose: The purpose of Ordinance No. 952 is to make it an offense for motorists to use hand-held communications devices while driving in an active school zone. Applicability: This Ordinance makes it unlawful for a person to drive or operate a motor vehicle in a school zone, on official school days, during the hours when the school zone is in effect, and when school zone signs and signs prohibiting handheld mobile telephone use are posted in place, while using a handheld mobile telephone to engage in a call or to create, send or read messages. Action Requested: City Council review and approval Ordinance 952 making it an offense for motorists to use hand-held communications devices while driving in an active school zone. Financial Considerations: Under the terms of the Ordinance the City would be responsible for posting signs in school zones prohibiting the use of hand-held mobile telephones during times the school zones are active. Citizen Input/ Board Review: This item was discussed and unanimously approved during the November 18, 2008 meeting of SPARK. Legal Review: This Ordinance has been reviewed by Tim Wood. Alternatives: City Council can approve or reject the Ordinance. Supporting Documents: Ordinance 952amending Chapter 18 “TRAFFIC AND VEHICLES,” of the Southlake Code of Ordinances, by adding a new section to ARTICLE I, “Use of Hand-Held Communication Devices Prohibited in School Zones” Staff Recommendation: Conduct a public hearing and make a recommendation on Ordinance No. 952, prohibiting the use of hand-held communication devices in active school zones. Attachments: Ordinance No. 952 ORDINANCE NO. 952 AN ORDINANCE OF THE CITY OF SOUTHLAKE, TEXAS AMENDING THE SOUTHLAKE CODE OF ORDINANCES, AS AMENDED, BY AMENDING CHAPTER 18 “TRAFFIC AND VEHICLES,” BY ADDING A NEW SECTION TO ARTICLE I, “USE OF HAND-HELD COMMUNICATIONS DEVICES PROHIBITED IN SCHOOL ZONES” MAKING IT AN OFFENSE FOR MOTORISTS TO USE HAND-HELD COMMUNICATIONS DEVICES WHILE DRIVING IN AN ACTIVE SCHOOL ZONE; DEFINING TERMS; PROVIDING DEFENSES; PROVIDING FOR ENFORCEMENT BY THE POLICE DEPARTMENT; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS , the City of Southlake (“City”) is a home rule city acting under its charter adopted by the electorate pursuant of Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; WHEREAS , to further serve and protect school-aged children traveling to and from elementary and secondary schools and other educational facilities throughout the State, the State of Texas and the City of Southlake have adopted certain laws regulating the speed of motor vehicles in a “school zone”, said laws applying on official school days and during the hours when the school zone is in effect; and WHEREAS , using a hand-held mobile telephone (a/k/a a “cell phone”) while operating a motor vehicle necessarily distracts the actor from his or her operation of said motor vehicle and this causes him or her to concentrate less on driving safely; and WHEREAS , using a hand-held mobile telephone while operating a motor vehicle necessarily limits the actor’s ability to steer and maneuver said motor vehicle; and WHEREAS , the City finds that the use of a hand-held mobile telephone while operating a motor vehicle in an active school zone creates a danger to school children and others that the City seeks to minimize; and WHEREAS , the City Council has determined that it is in the best interests and safety of the citizens of the City of Southlake that this serious matter involving the protection of school- aged children traveling to and from school should be addressed; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION 1. Chapter 18, “Traffic and Vehicles” of the Southlake Code of Ordinances is hereby amended by amending Article I, by adding a new Section 18.13, prohibiting the use of hand-held telecommunications devices within a school zone, to provide as follows: Sec. 18.13Use of handheld mobile telephones prohibited in school zones (a) For purposes of this section the following definitions apply: (1) Engaging in a call. Talking into, dialing or listening on a handheld mobile telephone, or engaging in actions such as typing or reading messages, using the Internet, or otherwise accessing a mobile telephone’s data sources, but shall not include holding a mobile telephone to activate or deactivate such telephone. (2) Hands-free mobile telephone. A mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand (or prosthetic device or aid in the case of a physically disabled person), whether or not the use of either hand (or prosthetic device) is necessary to activate, deactivate or initiate a function of such telephone. (3) Handheld mobile telephone. A mobile telephone with which a user engages in a call using at least one hand (or prosthetic device or aid in the case of a physically disabled person). (4) Mobile telephone. The device used by subscribers and other users of wireless telephone service to access such service and shall include personal digital assistants. (5) Personal digital assistant. A device operated using a wireless telecommunications service that provides for data communication other than by voice. (6) Wireless telephone service. Two-way real time voice telecommunications service that is interconnected to a publicly switched telephone network and commonly referred to as cellular service or personal communication service. (b) Except as otherwise provided below, it shall be unlawful for a person to drive or operate a motor vehicle in a school zone, on official school days, during the hours when the school zone is in effect, and when school zone signs and signs prohibiting handheld mobile telephone use are posted in place, while using a handheld mobile telephone to engage in a call or to create, send or read messages. (c) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. An operator of a motor vehicle who holds a mobile telephone to create, send or read messages, including using the Internet or accessing databases, while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear. (d) Subsection (b) shall not apply to: (1) The use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, a physician’s office or health clinic; the City’s Department of Public Safety; (2) Any law enforcement, public safety or police officers, emergency services officials, first aid, emergency medical technicians and personnel, or any fire safety officials in the performance of duties arising out of and in the course of their employment as such; or (3) The use of a hands-free mobile telephone when being used in a hands-free manner. (e) The violation of this section is a strict liability offense. SECTION 2. This ordinance shall be cumulative of all provisions of ordinances and of the Code of Ordinances of the City of Southlake, Texas, as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event the conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 4. Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Two Hundred Dollars ($200.00) for each offense. SECTION 5. All rights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of any ordinances of this nature which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 6. The City Secretary of the City of Southlake is hereby directed to publish caption, penalty clause, and effective date clause in the official newspaper at least once within ten (10) days after the passage of this ordinance. SECTION 7. This Ordinance shall be in full force and effect form and after its passage and publication as provided by law, and it is so ordained. PASSED AND APPROVED ON THIS _____ DAY OF _________________, 2009. _______________________________ MAYOR ATTEST: _______________________________ CITY SECRETARY EFFECTIVE: ________________________ APPROVED AS TO FORM AND LEGALITY: _________________________________ CITY ATTORNEY