ARTICLE I. IN GENERAL

21-1 Abandoned iceboxes.

No person shall dispose of or abandon upon premises of another, in any place accessible to children outside of a building or dwelling, any icebox, refrigerator, freezer or similar container unless the lock on the same may be released from the inside thereof or unless the lock or door thereon shall have been first removed, nor shall any person permit any such icebox, refrigerator, freezer or similar container to remain upon premises owned or controlled by him.

(Rev. Ords. 1962, §§ 2751, 2752)

State law reference—Similar provisions, 13 V.S.A. § 1310.

21-2 Unclaimed property—Disposition of.

When personal property has been in the custody and possession of the police department for a period of thirty (30) days and when reasonable efforts and opportunities have been allowed for the owner to reclaim such property, and no reasonable claim of ownership has been made, the chief of police is hereby empowered and authorized to dispose of such property. The chief of police is also empowered to dispose of property by means of conversion to police department or other city department usage or by means of a donation to local charities, clubs and or organizations or by private sale when the reasonable market value of the property, in the opinion of the chief, does not exceed one thousand dollars ($1,000.00) and in those instances when the same is of greater value, by public auction.

(1969 Cum. Supp., § 6751; Ord. of 4-7-80; Ord. of 12-22-86; Ord. of 1-27-92; Ord. of 6-22-98)

Cross reference—Abandoned vehicles, § 20-156 et seq.

21-3 Same—Storage charges.

The police department is hereby authorized and allowed a charge of ten cents ($0.10) per day for each item of personal property held in its possession, which charges shall become a lien upon the property so stored and the payment therefor shall have the first priority from the proceeds of its sale. The chief of police is further authorized to waive these charges in those cases deemed appropriate by him.

(1969 Cum. Supp., § 6752)

21-4 Same—Disposal of proceeds of sale.

The proceeds of any sale held pursuant to section 21-2 shall be used first to pay for all costs incurred in holding the sale and then the storage charges of the police department shall be satisfied therefrom. The chief of police shall file a report in the records of the department of the disposition of the property along with the amount of money received and the charges against the property. In those cases in which a balance remains, the money shall be held for an additional period of six (6) months and if not claimed within that period, shall become the property of the city and shall be paid over to the treasurer for the benefit of the city.

(1969 Cum. Supp., § 6753)

21-5 Signs in public ways; on vehicles.

(a)    No person shall deposit or cause to be deposited any commercial advertising matter in or on any motor vehicle parked upon the streets or parked in other public places within the limits of the city without the permission or knowledge of the owner thereof.

(b)    No person or business shall place or cause to be placed any advertisement or sign, sandwich board sign, or other type of advertising material or structure in or on any streets, sidewalks, greenbelts, or other rights-of-way within the limits of the city except as permitted in subsections (c), (d), and (e) of this section. The code enforcement office shall be the lead department responsible for the enforcement of this ordinance and the director of the public works department or his/her designee, all code enforcement officers, and all law enforcement officials are authorized to enforce the provisions of this section. Notwithstanding section 21-56(a), a violation of subsections (b), (c), or (d) is punishable by a civil penalty of from one hundred fifty ($150.00) to five hundred dollars ($500.00) and the confiscation of the sign at the owner’s expense. The waiver penalty for such offense is one hundred fifty dollars ($150.00).

(c)    For all businesses located within the Church Street Marketplace District, a person or business may, subject to the written consent of the Marketplace Commission, place or cause to be placed advertisements or signs, sandwich board signs, or other type of advertising material or structure upon the streets or sidewalks within such district provided that the following provisions shall govern:

(1)    Freestanding permanent advertising signs. A person may locate a freestanding sign indicating special, sales, rates, entertainment, products, items, bills of fare, business location, hours of operation, or similar information of a business nature, provided that:

a.    The sign is placed directly in front of and within fifteen (15) feet of the premises to which it directs attention;

b.    The sign does not exceed eight (8) square feet in size as measured by the rectangle created by drawing a line from the highest point of the sign to the pavement and from left to right at the widest point of the sign;

c.    The sign does not exceed three (3) feet in width;

d.    The sign does not exceed four (4) feet in height;

e.    The sign is clean, in good repair, and in the opinion of the commission, complementary to the overall appearance of the marketplace district;

f.    The sign does not impede the flow of pedestrian traffic;

g.    The sign is removed when the business establishment is not open for business;

h.    The sign does not obstruct signs on adjacent structures;

i.    Special messages calling attention to special sales or special events must be restricted to the bottom one-half of the face area of the sign;

j.    The sign is not used more than three hundred sixty (360) days in any one calendar year;

k.    The commission shall permit no more than forty-eight (48) such signs within the marketplace district, and no more than thirty (30) such signs on one side of the street;

l.    No person may have more than one sign located in or attached to any part of the public right-of-way or canopy system.

(2)    Three-day freestanding signs. A temporary freestanding sign, announcing a special show, special event, or special activity on the adjacent premise, may be located in the district provided that:

a.    Paragraphs (a) through (l) of subsection (b)(1) above shall apply;

b.    No business establishment shall locate such a sign in the district for a period in excess of three (3) days in any one calendar month.

(3)    Walking sandwich board signs. Walking sandwich board signs are permitted subject to the review and written consent of the Church Street Marketplace District Commission, which may charge permit fees for such signs. Such signs shall satisfy the following requirements:

a.    No sign shall exceed six (6) square feet on any face;

b.    No sign shall have more than two (2) faces;

c.    The sign’s lower edge shall not extend below the knee level of the person wearing the sign.

(4)    Terms and conditions. As a condition of issuing its written consent, the Marketplace Commission may attach thereto any terms or conditions reasonably necessary to preserve the character of the Marketplace District and to protect the public health, safety and general welfare.

(d)    If applied for and permitted pursuant to this subsection, an advertisement or sign, sandwich board sign, or other type of advertising material or structure may be placed in or on a sidewalk or greenbelt adjacent to businesses located in any of the city’s Downtown Mixed Use (except the Church St. Marketplace District), Neighborhood Mixed Use and Enterprise zones as defined by the Burlington Comprehensive Development Ordinance.

Notwithstanding the limitations on districts in which signs may be permitted, existing businesses with existing authorized signs in the right-of-way shall be allowed under a permit applied for and granted under these provisions; this right shall expire upon the termination of the business. For signs in districts where they are allowed, signs that are currently licensed but do not meet the criteria can apply for a variance without the need to find extraordinary circumstances.

The public works director or his or her designee shall be responsible for granting or denying permits.

(1)    Criteria. The following criteria shall apply to the granting of permits:

(A)    Location: The location of the sign shall be set forth on the permit. Signs must be placed adjacent to the premises as close to the place of business as safety and aesthetic concerns will allow. Signs shall not be permitted if, when placed, the sign is within twelve (12) feet of a previously permitted sign. Variances must be requested from the Public Works Commission for special permission to place signs in a place not adjacent to the business where permitted by Chapter 21 of Title 10 of the Vermont Statutes Annotated, provided that such signs shall be placed in a district in which signs permitted in subsection (d) are allowed.

(B)    Size: Signs shall be:

(i)    No more than four (4) feet high (measured from the ground or pavement to the top of the sign) or wider than three (3) feet at its widest point and in no event shall a sign’s total area exceed eight (8) square feet; or.

(ii)    No higher than two-and-a-half (2 1/2) feet or wider than three (3) feet and in no event shall such a sign’s total area exceed six (6) square feet. if it is:

(*)    within forty (40) feet of a street intersection; or

(**)    within fifteen (15) feet of a driveway curb cut; or

(***)    placed in a location not adjacent to the business pursuant to (d)(1)(A).

(C)    Number: There shall be no more than one sign per business permitted. Where more than one (1) business is located on a property, the public works commission may either deny all requests for a permit or grant a variance from the requirements in (d)(1)(A) and (B) (size and location) pursuant to the provisions on variances.

(2)    Standard conditions. Any terms or conditions in addition to the provisions of (d)(1) that are reasonably necessary to protect the public health, safety or welfare may be attached to the permit. The following shall be standard terms and conditions of any permit issued pursuant to this section:

(A)    All signs must be freestanding with no more than two sides and must not be attached to any other structure or object, including, but not limited to parking control signs, parking meters, trees, bushes, telephone and utility poles, mail boxes, or news racks.

(B)    All signs must be constructed of durable, weather resistant materials and finish, sufficiently weighted to the ground to prevent blow-down and shall not be electrified, illuminated or animated in any way. The permittee shall maintain the sign in a clean and original appearance and is solely responsible for any damage to the sign.

(C)    No sign shall be constructed, placed or maintained in a manner to obstruct driver or pedestrian visibility or use of the streets, parking meters, or sidewalks. No sign shall obstruct any intersection, crosswalk, access ramp, bus stop, fire hydrant, driveway, building entrance or emergency exit. No sign shall be placed in a manner that decreases the horizontal area for clear passage of pedestrians to less than five (5) feet. No sign shall be constructed, placed, or maintained in a manner that impedes or impairs the city’s ability to maintain the road, sidewalk, street trees parking meters, and green belt.

(D)    From March 21st through September 21st, all signs must be removed from the sidewalk or greenbelt no later than 7 p.m. each evening or at anytime the establishment is closed, whichever occurs first. From September 22nd through March 20th, all signs must be removed from the sidewalk or greenbelt by 5 p.m. each evening or at anytime the establishment is closed, whichever occurs first. Signs shall not be placed out on the sidewalk or greenbelt before 6 a.m. each morning.

(E)    The permittee shall place the permit number sticker on the upper right corner of the sign.

(F)    The permittee shall carry liability insurance in amounts required by the City’s liability insurance company, and shall include the City of Burlington as an additional insured party. The permittee shall agree to indemnify and hold the city harmless and free from all liability arising out of its use of the street, greenbelt, sidewalk, or other right-of-way. Should the sign be damaged due to maintenance such as plowing or tree maintenance, the City of Burlington is not responsible for replacement of the sign.

(3)    Denial, appeal, variance. If it reasonably appears that granting the permit shall jeopardize the public’s health, safety or welfare, the application shall be denied. Within ten days of the date of a denial from the director, or his or her designee, the applicant may appeal the decision in writing to the public works commission. The public works commission may deny or grant the permit application and may set terms and conditions consistent with the provisions of subsection (2) when it deems it necessary for the protection of the public’s health, safety or welfare. No sign shall be placed on a street, sidewalk, greenbelt, or other city right-of-way pending the appeal of the director’s decision.

An applicant may also seek a variance from the provisions of this section in the same manner that an appeal is taken to the commission. The commission may grant a variance if it finds that there are extraordinary and exceptional circumstances or situations that make strict compliance with the provisions of this section unusually difficult or would create an undue hardship. The commission shall have the power to vary from the strict application of the requirements of this section only to the least extent necessary to relieve the difficulties or hardships involved and only if the variance will not cause a detriment to the health, safety, and welfare of the public and will not cause an impairment of the intent and purpose of this section or the specific limitations set upon variances in this section.

(4)    Permit fees. The public works department shall set fees for the permits subject to review and final approval of the city council. The fees established shall consider the administrative costs of the permitting process including costs of enforcement of this section to the city.

(5)    Signature, taxes paid, insurance required. No permit shall be issued unless the signature of the owner of the property on which the applicant’s business is located appears on the application and the applicant is current on all taxes and fees owed to the city and a certificate of insurance has been provided to the public works department showing current and effective insurance in the required amounts.

(6)    Revocation.

(A)    Revocation shall be automatic and without notice to cure when taxes and/or fees become delinquent or liability insurance has lapsed or does not comply with section (d)(2)(F). Revocation under this provision may result in the confiscation of the sign at the expense of the permit holder.

(B)    For all other violations of the conditions of a permit, prior to revocation and confiscation of a sign, a notice of the violation and a date by which such violation must be cured shall be given to the permittee. Notice of any revocation shall be by first class mail. Failure to cure the violation by said date may result in the confiscation of the sign at the expense of the permit holder and the automatic revocation of the permit.

(C)    Signs confiscated pursuant to this section shall be in the custody and possession of the code enforcement office for a period of thirty (30) days. The owner of a confiscated sign may reclaim the sign within thirty (30) days of its confiscation upon payment of the cost of confiscation. The cost of confiscation shall be set by the code enforcement office, subject to the review and final approval of the city council. The chief code enforcement officer or his/her designee is empowered to dispose of the signs if such signs are not claimed within this thirty-day period.

(D)    Permits that have been revoked pursuant to subsection (d)(6)(B) must be renewed in accordance with all the requirements of this section. Permits revoked pursuant to subsection (d)(6)(A) shall be automatically reinstated without need for reapplication upon the payment of all delinquencies or curing of any lapse in insurance compliance.

(7)    Permit term. Permits issued under this section shall be effective for up to two years from the date of issuance until April 30 of every even year unless:

(A)    The establishment is no longer in business.

(B)    The permit has been revoked pursuant to section 21-5(d)(6).

(C)    The city has revoked a permit without cause after a thirty-day notice to the permit holder. The director shall provide an explanation as to the rationale for the no cause revocation.

(D)    A shorter term has been requested and granted.

(E)    Temporary signs for political candidates, parties, and organizations, signs for charitable organizations, and signs for garage/lawn/yard type sales are exempt from the district limitations and the requirement for a permit as long as the signs do not exceed the size limitations set forth in subsection (d)(1)(B)(ii) and do not obstruct the public rights-of-way or otherwise impair the public health, safety or welfare.

(Rev. Ords. 1962, § 4261; 1969 Cum. Supp., § 4261; Ord. of 3-20-78; § 5; Ord. of 5-2-83; Ord. of 10-7-85; Ord. of 10-27-03, eff. 11-26-03; Ord. of 2-18-20(1))

State law reference—Advertising generally, 13 V.S.A. § 301 et seq.

21-6 Posting bills.

(a)    No person shall post a show bill, advertisement or paper, or paint a sign, advertisement or notice on a building, fence, post, pole, stone or wall within the city without the written consent of the owner thereof.

(b)    No person shall post a show bill, advertisement or paper, or any signs, advertisements or symbols of any nature on any bench, support column, light pole, planter, bike rack, litter container or any other public amenity in the Church Street Marketplace District, except such spaces designated for such purpose by the Church Street Marketplace commission.

(Rev. Ords. 1962, § 1701; Ord. of 5-2-83)

21-7 Auctioneers regulated.

(a)    Defined. As used in this section "auctioneer" shall mean any person who holds himself out as a public auctioneer.

(b)    Prohibited; exception. No person shall carry on the business of an auctioneer, or render any service as an auctioneer, unless duly licensed as provided by Chapter 19

(c)    Fee. The fee for a license required by subsection (b) shall be fifty dollars ($50.00).

(Rev. Ords. 1962, §§ 1261, 1262; Ord. of 3-20-78, § 5)

Charter reference—Power of city council to regulate, § 48(IV), (XXIV).

Cross reference—Licenses generally, Ch. 19.

State law reference—Licensing auctioneers generally, 32 V.S.A. §§ 7601—7603.

21-8 Reserved.

Editor’s note—An ordinance adopted Mar. 12, 2018, repealed § 21-8 which pertained to aggressive panhandling and derived from Rev. Ords 1962, § 3551 and an ordinance adopted Mar. 18, 2002.

21-9 Reserved.

Editor’s note—An ordinance adopted Mar. 12, 2018, repealed § 21-9 which pertained to soliciting contributions for charities and derived from Rev. Ords. 1962, § 4262, the 1969 Cum. Supp. § 4262 and an ordinance adopted May 2, 1983.

21-10 Use of bow and arrow, airguns, etc. prohibited.

No person shall shoot a bow and arrow with metal arrow points or discharge a rifle or pistol using air, CO2 or any propellant other than gunpowder to propel bullets, pellets or BBs within the limits of the city except in an area which is specifically approved for such use by the director of the department of parks and recreation or the superintendent of schools or their designees. Excluded from this prohibition shall also be any law enforcement usage by law enforcement officers and official program of any other certified school, college, university or recreational center.

(Rev. Ords. 1962, § 3556; Ord. of 11-21-05/12-21-05; Ord. of 5-22-06/6-21-06)

21-11 Discrimination in real estate sales and rentals prohibited.

No person having the right to sell, lease or sublease a dwelling may refuse to grant an option for selling, or to sell, lease or sublease said dwelling to any other person or group of persons because of the race, creed, color or national origin of such other person or group of persons.

(Rev. Ords. 1962, § 3701; 1969 Cum. Supp., § 3701)

State law reference—Similar provisions, 13 V.S.A. § 1452.

21-12 Discharging firearms prohibited.

No person shall, except in the performance of a legal duty, or upon or within a firing range approved as to construction and supervision by the chief of police, discharge a gun, pistol or other firearm within the city limits.

(Rev. Ords. 1962, § 3555)

Cross reference—License required for shooting galleries, § 4-6; firearms prohibited in cemetery, § 9-13; firearms prohibited in parks, § 22-12.

State law reference—Weapons generally, 13 V.S.A. § 4001 et seq.; authority of municipality to regulate use or discharge of firearms, 24 V.S.A. § 2291(8).

21-13 Noise control ordinance.

(a)    Purpose. The purpose of this section is to preserve the public health, safety, and welfare by prohibiting excessive and disturbing noise and to prevent noise which is prolonged or unsuitable for the time and place and which is detrimental to the peace and good order of the community. It is the goal of this section to allow all residents of our city to peacefully coexist in a manner which is mutually respectful of the interests and rights of others.

(b)    Prohibited noise offenses:

(1)    General prohibition. It shall be unlawful for any person to make or cause to be made any loud or unreasonable noise. Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another or when it endangers the health, safety or welfare of the community. Any such noise shall be considered to be a noise disturbance and a public nuisance.

(2)    Express prohibitions. The following acts, which enumeration shall not be deemed to be exclusive, are declared to be noise disturbances:

a.    Radios, television sets, musical instruments, phonographs and similar devices. The operation or permitting the use or operation of any musical instrument, radio, television, phonograph, or other device for the production or reproduction of sound in such a manner as to be plainly audible through walls between units within the same building, from another property or from the street between the hours of 10:00 p.m. and 7:00 a.m. or in such a manner as to unreasonably disturb the peace, quiet or comfort of the public.

b.    Motor vehicle sound equipment. The operation or permitting the operation of any radio, stereo or other sound amplification equipment from a motor vehicle that is audible at twenty-five (25) feet from such vehicle. The term "motor vehicle" shall mean any car, truck or motorcycle.

c.    Parties and other social events. Notwithstanding section (b)(1), it shall be unlawful for any person who is participating in a party or other social event to actively make unreasonably loud noise. A party or other social event is defined as a gathering upon the premises of one or more persons not residing at the premises. Unreasonably loud noise is noise that unreasonably interferes with the peace or health of members of the public or is plainly audible between the hours of 10:00 p.m. and 7:00 a.m. through the walls between units within the same building, from another property or from the street. It shall also be unlawful for any resident of a premises to allow a party or other social event occurring in or about the premises to produce unreasonably loud noise. There is a rebuttable presumption that all residents of the premises have allowed such party or other social event to occur in or about the premises. All residents of the premises are responsible for such unreasonable noise made, each having joint and several liability.

d.    Machinery. The operation or permitting or directing the operation of any power equipment or machinery outdoors between the hours of 9:00 p.m. and 7:00 a.m. except in emergency situations.

e.    Construction noise. The excavation, demolition, erection, construction, alteration or repair of any premises or structure between the hours of 9:00 p.m. and 7:00 a.m. except in emergency situations.

f.    Loudspeakers. The use of loudspeakers or other sound amplification equipment upon the public streets for the purpose of commercial advertising or attracting the attention of the public to any building or site.

(c)    Exemptions. Noise from the following sources shall be exempt from the prohibitions specified herein:

(1)    All safety signals and warning devices or any other device used to alert persons to any emergency or used during the conduct of emergency work, including, but not limited to, police, fire and rescue vehicle sirens.

(2)    The repair and maintenance of municipal facilities, services or public utilities when such work must be accomplished outside daytime hours.

(3)    Snow removal equipment operated within the manufacturer’s specifications and in proper operating condition.

(4)    Musical, recreational and athletic events conducted by and on the site of a school or educational institution.

(5)    Events and activities conducted by or permitted by the city. Persons operating an event or activity under authority of an entertainment permit, parade/street event permit, solid waste license, or parks special use permit shall comply with all conditions of such permits or licenses with respect to noise control issues.

(6)    Construction or repair work which must be done to address an emergency health or safety concern and that cannot be accomplished during daytime hours and which is not work which includes normal maintenance and repair.

(d)    Notification by property owners of rental housing. Owners of rental housing shall be required to provide a copy of this section to a tenant at the start of the tenancy. However, the failure of an owner to provide a copy of the ordinance shall not be a defense to a violation of this section.

(e)    Enforcement:

(1)    First offense. A first offense of any provision of this section, except subsection (b)(2)(c.) (Parties and social events) by a person during any twenty-four-month period shall be deemed a civil ordinance violation and shall be punishable by a penalty of a minimum fine of two hundred dollars ($200.00) to a maximum fine of five hundred dollars ($500.00), which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty for a first offense of any provision of this section except subsection (b)(2)(c.) (Parties and social events) by a person during any twenty-four (24) month period shall be a fine of two hundred dollars ($200.00).

(2)    A first offense of subsection (b)(2)(c.) (Parties and social events) by a person during any twenty-four-month period shall be deemed a civil ordinance violation and shall be punishable by a penalty of a minimum fine of three hundred dollars ($300.00) to a maximum fine of five hundred dollars ($500.00) which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty for a first violation of subsection (b)(2)(c.) (Parties and social events) shall be a fine of three hundred dollars ($300.00).

(3)    Second offenses. Except for violations of subsection (b)(2)(c.) (Parties and social events), a second offense during a twenty-four (24) month period shall be deemed to be a civil offense and shall be punishable by a minimum fine of three hundred dollars ($300.00) to a maximum fine of five hundred dollars ($500.00) which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty shall be a fine of three hundred dollars ($300.00).

(4)    A second offense under subsection (b)(2)(c.) (Parties and social events) during a twenty-four-month period shall be deemed to be a civil offense and shall be punishable by a penalty of a minimum fine of four hundred dollars ($400.00) to a maximum fine of five hundred dollars ($500.00) which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty for a second violation of subsection (b)(2)(c.) shall be a fine of four hundred dollars ($400.00).

(5)    The third and any subsequent offense within a twenty-four (24) month period shall be deemed a criminal offense and shall be punishable by a fine of five hundred dollars ($500.00).

(6)    The city shall notify the owner of any property upon which a noise control ordinance violation has occurred and a person has been given a civil Vermont Municipal Complaint or criminal citation pursuant thereto that such complaint or citation has been issued.

(7)    Any law enforcement officer may issue a municipal complaint ticket or criminal citation for offenses of the noise control ordinance.

(Ord. of 5-6-96; Ord. of 6-22-98; Ord. of 8-14-00; Ord. of 5-21-01; Ord. of 2-18-03; Ord. of 1-12-10)

Charter reference—Power of city to prevent noise, § 48(V).

Cross reference—Street musicians and entertainers licensed, § 4-4; boisterous conduct in city cemeteries prohibited, § 9-9; disorderly conduct at fires, § 13-7.

State law reference—Disturbing religious meetings, 13 V.S.A. § 971; breach of peace by disorderly acts, 13 V.S.A. § 1021(b); noise at night, 13 V.S.A. § 1022; disturbing meetings, 13 V.S.A. § 1023.

21-14—21-16 Reserved.

Note—See the editor’s note to § 21-13

21-17 Emission of smoke or cinders prohibited; report of violations.

(a)    The emission of dense or thick black or gray smoke or cinders from any smokestack or chimney used in connection with any stationary engine, steam boiler or furnace of any description within the city limits to a degree or in such a manner as to be a nuisance is hereby prohibited.

(b)    It shall be the duty of the health officer to report to the city attorney for prosecution any violation of the provisions of this section.

(Rev. Ords. 1962, §§ 2851, 2853)

Cross reference—Discharge of noxious substances into harbor prohibited, § 7-9; discharge of oil into harbor prohibited, § 7-10; open fires restricted, § 13-3; hours when outside fires permitted, § 13-4; outside fire endangering buildings or noxious to others prohibited, § 13-5.

21-18 Placing substances in reservoir and swimming in reservoir prohibited.

No person shall throw, put or place, or cause to be thrown, put or placed, in any public reservoir, or the water thereof, in the city, stone, dirt, ashes, shavings, sticks, garbage, rubbish or filth of any kind, nor shall any person wade or bathe in, or cause or permit a dog or other animal to go into or swim in the water of a public reservoir in the city.

(Rev. Ords. 1962, § 6017)

Cross reference—Discharge of noxious substances into harbor prohibited, § 7-9; discharge of oil into harbor prohibited, § 7-10; water, Ch. 31.

21-19 Keeping unwholesome, noisome or offensive houses or places prohibited.

No person shall keep any unwholesome, noisome or offensive house or place in the city.

(Rev. Ords. 1962, § 2601)

Cross reference—Barn cellars and ventilation, § 5-2; keeping pigsty regulated, § 5-3; health generally, Ch. 17.

21-20 Gambling prohibited; confiscation of devices.

No person shall permit any gambling for money, liquor or any valuable thing in his building or upon his premises, or keep any table or instrument or device with a view of gambling thereon or therewith. The police are hereby empowered and authorized to seize any such tables, instruments or devices, if the same shall be taken while gambling is being carried on; and the court taking cognizance of such offense may, on conviction, order the destruction of such tables, instruments or devices taken as aforesaid.

(Rev. Ords. 1962, § 3559)

Charter reference—Power of city council to restrain and prohibit gambling, § 48(II).

Cross reference—Gambling prohibited in bowling alleys, shooting galleries, skating rinks and billiard parlors, §§ 4-6, 4-7; coin-operated devices, § 4-21 et seq.

State law reference—Gambling regulated, 13 V.S.A. § 2132 et seq.

21-21—21-23 Reserved.

Editor’s note—An ordinance adopted Mar. 12, 2018, repealed §§ 21-21—21-23 which pertained to hitchhiking, indecent or profane language and indecent exhibitions and derived from Rev. Ords. 1962, §§ 3553, 3557 and 3558.

21-24 Urination and defecation in streets.

(a)    No person shall urinate or defecate in any street, park or other public place except in facilities specifically provided for this purpose. A person who violates this subsection commits a civil offense punishable by a civil penalty of sixty dollars ($60.00) (with a waiver penalty of fifty dollars ($50.00)) for the first offense and seventy-five dollars ($75.00) (with a waiver penalty of seventy dollars ($70.00)) if the offense occurs less than six (6) months after having been found to have committed the first offense. The penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center.

(b)    A person who urinates or defecates in any street, park or other public place except in facilities specifically provided for this purpose after having been found to have committed two (2) civil offenses involving urination or defecation in a public place less than six (6) months previously shall have committed the criminal offense of repeated unlawful urination or defecation in a public place. The offense of repeated unlawful urination or defecation in a public place is designated as a criminal offense, pursuant to 24 V.S.A. § 1974, punishable by a criminal penalty of one hundred dollars ($100.00). The charge shall be dismissed and the penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center.

(Ord. of 8-14-72; Ord. of 5-14-18)

21-25—21-27 Reserved.

Editor’s note—An ordinance adopted Mar. 12, 2018, repealed §§ 21-25—21-27 which pertained to indecent writing, pictures, show bills, advertisements, signs or notices and loitering and derived from Rev. Ords. 1962, §§ 3551, 3553 and 3554 and an ordinance adopted April 10, 1975.

21-28 Use of buildings by disorderly persons.

No person shall permit his buildings or other place to be used, frequented or resorted to by riotous or disorderly persons, or by any vagrants, gamblers or common prostitutes, nor shall any person permit any boisterous, riotous or disorderly conduct therein or thereabout.

(Rev. Ords. 1962, § 3560)

Charter reference—Power of city council to prevent disorderly assemblages, § 48(V).

State law reference—Using building for purpose of prostitution, 13 V.S.A. § 2632.

21-29 Graffiti and defacement of property.

(a)    Findings and purpose. This section seeks to help prevent the spread of graffiti and defacement of property, public and private. Graffiti and the defacement of property are destructive of the rights and values of property owners. They are aesthetic blights on the entire community. Graffiti and defacement of property are acts of vandalism, detrimental to the city, and are, therefore, public nuisances.

(b)    Definitions.

(1)    "Graffiti" means any inscription, word, figure, painting or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to any surface of public or private property by any graffiti implement, without being authorized to do so by the owner of the property or the owner’s duly authorized agent.

(2)    "Graffiti implement" means an aerosol paint container, a broad-tipped marker, gum label, paint stick or graffiti stick, etching equipment, brush or any other device capable of scarring or leaving a visible mark on any natural or manmade surface.

(3)    "Defacement" means any application or causing the application to any surface of public or private property of paint, varnish, lead, crayon, wax, ink, dye or other substance, or the carving, chiseling, writing, or other such act of any mark, figure or letter on such property without being authorized to do so by the owner of the property or the owner’s duly authorized agent.

(c)    Prohibited acts. It shall be unlawful for any person to make graffiti or deface any surface of public or private property unless authorized by the owner of the property or the owner’s duly authorized agent.

(d)    Penalties. A violation of this ordinance is a civil offense and shall be punishable by a fine of five hundred dollars ($500.00) with a waiver penalty of four hundred dollars ($400.00). At the discretion of the prosecuting officer or city attorney, this penalty or a part thereof may be waived upon the successful completion of community service related to the elimination of graffiti and defacement.

(Ord. of 10-16-72; Ord. of 6-4-07, eff. 7-4-07)

21-30 Littering.

No bottles, broken glass, ashes, wastepaper or other rubbish shall be left at any place on the Church Street Marketplace except at such place or places as may be specially designated by the marketplace commission.

(Ord. of 10-24-88)

21-30.1 Feeding of pigeons prohibited.

(a)    No person shall deliberately dispense or distribute feed for or feed any pigeons in any public street, sidewalk, greenbelt, park, building, the Church Street Marketplace or any other public place in the city.

(b)    In addition to the penalties which the city may seek under section 1-9 of this Code for violations of this section, private parties may also seek to remedy such violations under the provisions of section 54 of the City Charter.

(Ord. of 5-20-91, § 21-30A)

Editor’s note—Two ordinances passed on May 20, 1991, amended Ch. 21 by adding provisions designated as §§ 21-30A and 21-30B. In order to conform to established Code format, the editor has redesignated these provisions as §§ 21-30.1 and 21-30.2

21-30.2 Feeding of sea gulls prohibited.

(a)    No person shall deliberately dispense or distribute feed for or feed any sea gulls in any public street, sidewalks, greenbelt, park, building, the Church Street Marketplace or any other public place in the city.

(b)    In addition to the penalties which the city may seek under section 1-9 of this Code for violations of this section, private parties may also seek to remedy such violations under the provisions of section 54 of the City Charter.

(Ord. of 5-20-91, § 21-30B)

Note—See the editor’s note to § 21-30.1

21-31 Restaurant, hotel, amusements and admissions taxes.

(I)    GENERAL PROVISIONS:

(A)    Title: This section may be cited as the "Restaurant, Hotels, Amusements and Admissions Taxes Ordinance."

(B)    Purpose and Authority: This section is enacted to raise revenue for municipal purposes pursuant to the Charter of the City of Burlington, Act No. 298, Acts of 1949, Sections 48III and 48XXIV.

The city council originally adopted this tax on January 30, 1986. Included in that ordinance was subsection "XVI Sunset." Subsequent to the adoption of the ordinance, the voters recommended and the Legislature adopted a change to the City Charter (Acts of 1986, M-21) which established a system of tax classification in Burlington.

That city council and each successor city council has construed the 1986 tax ordinance not to have sunset, to have been in continuous effect, and each has adopted a city budget which collected and expended funds raised by that 1986 ordinance.

On April 2, 1990, the Superior Court construed the intention of the 1986 enactment of this ordinance to trigger a sunset of it effective June 30, 1987, and declared it no longer effective.

The city council hereby enacts this ordinance as both a prospective and retroactive curative adoption. The city council views the Superior Court’s construction of the intention of our predecessor 1986 city council to be erroneous. Despite the fact that an appeal of that decision is pending at the time of this enactment, the city council finds that prudence further necessitates that this curative action also be taken by us as the local legislative body of the city.

It is therefore the express legislative purpose of this 1990 enactment of this ordinance to:

(1)    Adopt the "Restaurant, Hotel, Amusements, and Admissions Taxes Ordinance," Code of Ordinances, Section 21-31, without the sunset clause which appeared at subsection XVI of the 1986 enactment, and which gave rise to the Superior Court declaration of defect in the ordinance’s continued effectiveness after June 30, 1987; and

(2)    Make this enactment, which has eliminated the former sunset clause altogether, retroactive to the effective date of the original tax ordinance adopted January 30, 1986.

(II)    TAXES IMPOSED:

(A)    Restaurant Tax: There is hereby imposed a business occupation tax upon all persons engaged in the restaurant business of whatever name or character in the City of Burlington. The tax imposed shall be at the rate of two (2) percent of the gross receipts from taxable business, as defined herein, done per monthly period in accordance with the provisions of this section.

(B)    Hotel and Motel Tax: There is hereby imposed a business occupation tax upon all persons engaged in the hotel or motel business of whatever name or character within the City of Burlington. The tax imposed shall be at a rate of two (2) percent of gross receipts from taxable business, as herein defined, done per monthly period in accordance with the provisions of this section.

(C)    Amusements Tax: There is hereby imposed a business occupation tax upon all persons engaged in the business of operating places of amusement, including, but not limited to, pool halls, arcades, bowling alleys, or operating any establishment making available use of amusement devices of whatever name or character within the City of Burlington. The tax imposed shall be at the rate of two (2) percent of taxable business, as defined herein, done per monthly period in accordance with the provisions of this section.

(D)    Admissions Tax: There is hereby imposed a tax on admissions to circuses, menageries, carnivals, cinemas, shows of every kind, plays, athletic contests, exhibitions or entertainments for money of whatever name or character except those of educational or nonprofit institutions or organizations or wholly for charitable purposes. The tax imposed shall be at the rate of two (2) percent of the gross receipts from such admissions, as defined herein, done per monthly period in accordance with the provisions of this section.

(E)    Compliance Required: It shall be unlawful for any person to transact or carry on any business, occupation or activity subject to the provisions of this section without complying with all applicable provisions herein.

(III)    DEFINITIONS: For the purposes of this section, the following terms, phrases, words and their derivations shall have the meanings given herein:

(A)    Person means any individual, male or female, estate, trust, receiver, cooperative association, domestic and foreign corporation, syndicate, joint stock corporation, partnership of any kind, club and society.

(B)    Council means the city council of the City of Burlington, Vermont.

(C)    Treasurer means the treasurer of the City of Burlington, or his/her designated representative.

(D)    Gross Receipts means the total amounts received or receivable and the total amounts actually received or receivable for the performance of any act or service, of whatever nature it may be, for which a charge is made or credit allowed when such act or service is done as part of or in connection with a taxable admission or a taxable business as herein defined. Included in "gross receipts" shall be all receipts, cash, credits and property of any kind or nature, without any deductions therefrom on account of the cost of the property sold, the cost of the materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from "gross receipts" shall be the following:

(l)    Cash discounts allowed and taken. For the purpose of this section, "cash discount" means a deduction from the invoice price of goods or charge for services which is allowed if the bill is paid on or before a specified date.

(2)    Any tax required by Chapter 225 or Chapter 233 of Title 32 Vermont Statutes Annotated.

(E)    Monthly Period means such period which shall begin on the first day of each calendar month and includes the last day of each calendar month.

(F)    Successor means any person who shall, through direct or mense conveyance, purchase or succeed to the business, or portion thereof, or the whole or any part of the stocks, goods, wares or merchandise or fixtures or any interest therein of a taxpayer quitting, selling out, exchanging or otherwise disposing of his business. Any person obligated to fulfill the terms of a contract shall be deemed a successor to any contractor defaulting in the performance of any contract as to which such person is a surety or guarantor.

(G)    Taxable Business means:

(1)    Sales of any food or food products prepared on premises and delivered to the purchaser ready to eat, or of beverages, including alcoholic beverages, served for consumption on premises, but shall not include:

(a)    Meals served on the premises of day care centers, nurseries, kindergartens, elementary or secondary schools;

(b)    Meals prepared by the employees thereof and served to the patients or wards of any hospital, convalescent home, sanitorium, group home, nursing home or home for the aged;

(c)    Meals furnished to the elderly pursuant to the Older Americans Act 42 USC, Chapter 35, Subchapter VII;

(d)    Meals sold by nonprofit organizations at bazaars, fairs picnics, church suppers or similar events.

(2)    Rental of hotel and motel rooms including the conduct of incidental activities such as conduct of conventions, seminars and meetings on hotel or motel premises.

(3)    Charges of any kind received, including admission or minimum charges for the use of pool halls, billiard tables, bowling alleys, arcades, electric amusement devices, mechanical amusement devices, or the use of other places of amusement or of amusement devices of whatever name and character.

(H)    Taxpayer includes any individual, group of individuals, corporation, partnership or association required to pay a tax under this section, or any person who engages in any occupation for which tax is imposed by this section.

(I)    Hotel or Motel means an establishment which holds itself out to the public by offering sleeping accommodations and food for consideration, whether or not the major portion of its operating receipts is derived therefrom and whether or not the sleeping accommodations are offered to the public by the owner or proprietor or lessee, sub-lessee, mortgagee, licensee, or any other person or agent of any of the foregoing. The term "hotel" shall not include the following:

(1)    A hospital, licensed un Chapter 43 of Title 18, or a sanitorium, convalescent home, nursing home or a home for the aged.

(2)    An establishment operated by a nonprofit corporation or association organized and operated exclusively for religious, charitable or educational purposes, one or more, which, in furtherance of any of the purposes for which it was organized, operates a hotel as defined herein.

(J)    Restaurant means every eating and drinking establishment operated within the City of Burlington, including every restaurant, cafe, lunch counter, private and social club, bar, tavern, diner, cafeteria, delicatessen, sandwich shop, or other place, where any food or food products are prepared and delivered on premises to the purchaser ready to eat, or where beverages, including alcoholic beverages, are served for consumption on premises, or both, and for which charge is made. This term shall not include caterers who do not prepare and deliver food and beverages to customers at the caterer’s place of business. This term shall include all sites of athletic contests, shows, performances, movies, theaters and entertainment places where food, beverages, including alcoholic beverages, or refreshments are sold for consumption on premises.

(K)    Sworn Statement shall mean an affidavit sworn to before a person authorized to take oaths, or a declaration or certification made under penalty of perjury or an accounting of gross receipts of business done as required to be filed under this section.

(IV)    TAX-WHEN DUE:

(A)    Every taxpayer subject to the provisions of this section shall file within thirty (30) days of the effective date hereof an application with the treasurer for a taxpayer identification number. This application shall contain the legal name of the taxpayer, any trade name(s) employed, the address, place(s) of business within the city, principal place of business, phone number, authorized agent for service of process, the type(s) of taxable admissions received by the taxpayer and that taxable business(es) in which the taxpayer is engaged. Upon receipt of a complete application, the treasurer shall issue to each taxpayer an identification number. Failure of a taxpayer, or anyone reasonable likely to be a taxpayer as herein defined at the time that levy of the taxes herein commences, to file for an identification number shall be a violation.

(B)    The tax imposed by this section shall be due and payable commencing March 1, 1986, in monthly installments and remittance therefor shall be made on or before the last day of the month next succeeding the end of the monthly period in which the tax accrued. The remittance shall be made as provided in this section and shall be accompanied by a return on a form to be provided and prescribed by the city treasurer. The taxpayer shall be required to make a sworn statement that the information therein given is complete and true and that the taxpayer knows the same to be so.

(C)    If a person fails to file a return under oath when required to do so by this section, the treasurer, with the approval of the city council, shall fix his gross receipts using any information in his possession for the period in respect to which such person has failed to file a return, and shall assess the amount of tax due including applicable penalties.

(D)    The tax shall be considered delinquent on the day after it becomes due and payable pursuant to subsection (B) above.

(E)    If the treasurer determines that a taxpayer has failed to pay any tax, penalty or portion thereof due under this section, the treasurer shall mail to such taxpayer a statement showing the balance due and shall add thereto a thirteen dollar ($13.00) late penalty payment or interest at the rate of twelve (12) percent per year, whichever is greater. That unpaid balance and penalty total shall be subject to interest at a rate of twelve (12) percent per year from the date of underpayment. Such interest shall accrue until the date of payment. Within five (5) days from the date the statement is mailed, the taxpayer shall pay such balance and all interest due thereon. No such demand shall be made more than four (4) years after the close of the fiscal year in which the same accrued, except"

(1)    As against a taxpayer who has been guilty of any fraud or misrepresentation of material facts; or

(2)    Where a taxpayer has executed a written waiver of such limitation.

(F)    In the event any business subject to the tax defined herein closes or changes ownership, said business shall file a closing return with the city treasurer and pay the tax due within thirty (30) days from the time of closing or changing of ownership of said business. A closing return shall be construed delinquent if not filed within the specified time.

In the event a business referenced above fails to file a closing return, it shall be the responsibility of the successor to file the return and pay any taxes and penalties due thereunder.

(G)    It shall be the responsibility of the taxpayer to advise the city treasurer of any change in the type of business or the activities carried on.

(H)    The treasurer may, for good cause and with the approval of the city council, extend for not more than ninety (90) days the time for paying any sum, or a portion thereof, required to be paid hereunder. The extension may be granted at any time, provided a written request therefor is filed with the city treasurer prior to the delinquency date. Interest at the rate herein stated shall accrue during the period of extension.

(V)    PAYMENT OF TAX: At the time the return is required to be filed under this section, the tax shall be paid to the city treasurer by bank draft, certified check, cashier’s check, personal check or money order, or in cash. If payment is made by draft or check, the tax shall not be deemed paid unless the check or draft is honored in the usual course of business; nor shall the acceptance of any sum by the treasurer be an acquittance or discharge of the tax due unless the amount of the payment is in full and actual amount due. The return shall be presented to the city treasurer who shall endorse thereon the date and amount of the payment received by him and forthwith file the return in the office of city treasurer.

(VI)    EXAMINATION OF RECORDS:

(a)    The treasurer or his/her designee is hereby authorized to request, examine, audit and inspect such books and records of any taxable business as may be relevant or necessary to verify or ascertain the amount of the tax due.

(b)    All persons engaged in occupations subject to the provisions of this section are hereby required to permit examination of such books and records for the purpose aforesaid.

(VII)    INFORMATION CONFIDENTIAL:

(A)    Financial information furnished or secured pursuant to this section shall be deemed confidential in character and shall not be subject to public inspection and shall be kept so that the contents thereof shall not become known except to the person charged with the administration and enforcement of this section.

(B)    No officer, administrator or employee of the City of Burlington shall in any manner reveal the contents of any part or portion of the contents of any confidential information except as otherwise provided in this section, or in a legal action to enforce the provisions of this section, or pursuant to a court order.

(VIII)    RECONSIDERATION AND APPEAL

(A)    Any person aggrieved by any decision of the treasurer with respect to the assessment of any tax or penalty by the treasurer, or any person aggrieved by the refusal of the treasurer to make a refund requested under paragraph (IX), may petition the treasurer for a reconsideration within sixty (60) days after notice shall have been given such person. If a petition for reconsideration is not filed within such period, the amount of the assessment or the refusal to refund shall become final. If a petition is filed within such period, the treasurer shall reconsider his earlier action within twenty (20) days and, if the petitioner so requested in his petition, shall grant said petitioner an oral hearing and shall give the petitioner ten (10) days’ notice of the time and place thereof. The treasurer shall issue his final determination in writing to the petitioner within ten (10) days of the petition or the close of the hearing, whichever is later.

(B)    An appeal from any decision of the treasurer issued under subsection (A) above shall be taken to the superior court by filing notice of such appeal with the treasurer. Such notice shall be accompanied by a citation to the treasurer, signed by the clerk of the court, ordering that the treasurer appear before such court. The appeal shall be returnable at the same time and served and returned in the same manner as is required in the case of summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the city, with surety, to prosecute the appeal, and to comply with the orders and decrees of the court.

Such court may grant such relief as may be equitable and may order the treasurer to pay to the aggrieved taxpayer the amount of such relief with interest at the rate of six (6) percent per annum. Upon any appeal denied, costs may be taxed against the appellant, but no costs shall be taxed against the city.

(C)    If a petition or an appeal is not taken in strict conformance to this paragraph (VIII), the decision of the treasurer shall be final. The remedies provided by this paragraph (VIII) shall be the exclusive remedies of a taxpayer with respect to any decision taken under this section. Upon failure to petition or appeal as provided under this section, the taxpayer shall be bound by such decision and shall not thereafter contest, either directly or indirectly, such decision in any proceeding, including, without limitation, any proceeding brought to enforce any provision of this section.

(IX)    REFUNDS:

(A)    In the event of overpayment of any tax due under this section, the treasurer, or his authorized agent, upon written application by the taxpayer for a refund or credit filed within two (2) years after the date of such overpayment, may offset the amount of such overpayment against the taxpayer’s existing tax liability under this section or certify the request for refund for the purpose of processing a cash payment to such taxpayer. Refund of overpayments as authorized in this paragraph (IX) shall be approved by the city council.

(B)    No refund or credit may be allowed with respect to any payments made to the city more than two (2) years before the date of such application. Provided, however, where a taxpayer makes application for a refund or credit of any overpayment made more than two (2) years before the date of such application and such taxpayer has an outstanding tax deficiency, the amount of the refund or credit which would otherwise be allowable for the portion of the assessment period preceding the two-year period shall be offset against any such deficiency.

(X)    FAILURE TO COMPLY; FALSE RETURNS OR STATEMENTS: It shall be unlawful for any person subject to the provisions of this section to fail or refuse to do any act required by this section. It shall also be a violation of this section for any person to make any false or fraudulent application or return or any false statement or any representation in or in connection with any such application or return, or to aid or abet another in any attempt to evade payment of the tax, or any part thereof. Any such violations shall be punished as provided in Section 1-9 of this Code.

(XI)    COLLECTION OF DELINQUENT TAX: Any tax due and unpaid and delinquent under this section, and all penalties thereon, may be collected by civil action, which remedy shall be in addition to any and all existing remedies.

(XII)    TAX AS A DEBT: The amount of the tax and penalty imposed by the provisions of this section shall be deemed a debt to the city.

(XIII)    REMEDIES CUMULATIVE:

(A)    All remedies prescribed in this section shall be cumulative and the use of one or more remedies by the city shall not bar the use of any other remedy for the purpose of enforcing the provisions hereof.

(B)    The conviction and punishment of any person for violation of this section shall not excuse or exempt such person from the payment of any tax due or unpaid at the time of such conviction.

(XIV)    ADMINISTRATION RULES AND REGULATIONS: The council shall have the power and it shall be its duty from time to time to adopt, publish and enforce rules and regulations for the purpose of carrying out the provisions of this section and it shall be unlawful to violate or fail to comply with any such rule or regulation.

(XV)    SEVERABILITY: If any part or parts or application of any part of this section is held invalid, such holding shall not affect the validity of the remaining parts of this section.

(Ord. of 1-30-86; Ord. of 4-16-90; Ord. of 6-11-91; Ord. of 5-15-00; Ord. of 5-19-03)

Charter reference—Power of city council to regulate and license, § 48(XXIV).

21-32 Operating hours of restaurants, lunchrooms, etc., in residential zones restricted.

In any low density residential zone of the city, no restaurant, lunchroom, public eating place, drugstore or other store dispensing food and drink to the public for consumption on the premises shall remain open for business during the four-hour period between the hours of 1:30 a.m. and 5:30 a.m. inclusive.

(Ord. of 12-8-70; Ord. of 10-14-86)

Annotation—The ordinance [Ordinance of December 8, 1970] from which the preceding section is derived was attacked as being unconstitutional in that it violated the due process and equal protection clauses of the Fourteenth Amendment. The court noted that ordinances are presumed to be constitutional unless clear evidence is shown to the contrary and held that inasmuch as no such evidence was presented and further that since the ordinance was a valid exercise of the city’s police power, the ordinance is constitutional. City of Burlington v. Lee Inc., 200 A2d 23 (1972).

21-33 Prostitution.

It shall be unlawful for any female to be a prostitute, ply the vocation of a prostitute in this city, or subject her person to prostitution, and no male shall associate and consort with such female for the purpose of prostitution.

(Rev. Ords. 1962, § 3562)

State law reference—Prostitution prohibited, 13 V.S.A. § 2632.

21-34 Keeping house of prostitution.

It shall be unlawful for any person to keep a house of prostitution; permit prostitution in any house or building he may occupy; be an inmate of any house of ill-fame; or in any manner contribute to the support or maintenance of any house of ill-fame. It shall also be unlawful for any person having control of any house or building to lease or rent the same to any prostitute to be kept as a house of ill-fame.

(Rev. Ords. 1962, § 3561)

Charter reference—Power of city council to restrain and suppress houses of ill-fame, § 48(VII).

State law reference—Keeping house of prostitution prohibited, 13 V.S.A. § 2632.

21-35 Throwing stones or other missiles.

It shall be unlawful for any person to throw stones or other missiles in or upon a public street, common or other ground belonging to the city.

(Rev. Ords. 1962, § 3553)

Cross reference—Throwing stones or other objects in parks prohibited, § 22-6.

21-36 Wearing mask or disguise for illegal purposes.

No person shall wear any mask to conceal that person’s facial features or wear any other personal disguise to alter the person’s physical appearance, whether complete or partial, in any public street, space, building, or park or in any place of public accommodation with the intent or purpose:

(a)    To deprive any person or persons of their civil rights or the equal protection of the law;

(b)    To intimidate, threaten, abuse, or harass any person or persons or to cause them to fear for their own safety;

(c)    To avoid identification while committing, attempting to commit, or planning to commit a violation of any federal, state, or local law; or

(d)    To escape or evade criminal charges, issuance of a civil complaint for a violation of an ordinance, or arrest.

(Rev. Ords. 1962, § 3564; Ord. of 3-7-16(2))

21-37 Consumption of alcoholic beverages prohibited.

No person shall consume or attempt to consume any intoxicating malt or vinous beverage or intoxicating spirits upon the steps providing access to and egress from the Burlington City Hall.

(Ord. of 10-25-76, § 2; Ord. of 1-9-95)

21-38 Alcohol consumption, possession in public places.

(a)    Definitions. As used in this section, the following terms shall be defined as follows:

(1)    Open beverage container—A container, bottle, can or vessel containing malt or vinous beverages or spirituous liquors, which is opened.

(2)    Public place—A public place shall mean any bridge, culvert, roadway, street, square, fairground, sidewalk, alley, playground, park, or school property or other place open temporarily or permanently to the public or general circulation of vehicles or pedestrians within the City of Burlington.

(b)    Prohibitions. Except as authorized in subsections (b)(5) and (6) of this section:

(1)    No person shall have constructive or actual possession of an open beverage container in any public place or in any motor vehicle located in a public place. A person who violates this subsection commits a civil offense punishable by a civil penalty of sixty dollars ($60.00) (with a waiver penalty of fifty dollars ($50.00)) for the first offense and seventy-five dollars ($75.00) (with a waiver penalty of seventy dollars ($70.00)) if the offense occurs less than six (6) months after having been found to have committed the first offense. The penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center.

(2)    No person shall consume the contents of an open beverage container in any public place or in any motor vehicle in a public place. A person who violates this subsection commits a civil offense punishable by a civil penalty of sixty dollars ($60.00) (with a waiver penalty of fifty dollars ($50.00)) for the first offense and seventy-five dollars ($75.00) (with a waiver penalty of seventy dollars ($70.00)) if the offense occurs less than six (6) months after having been found to have committed the first offense. The penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center.

(3)    A person who has constructive or actual possession of an open beverage container in any public place or in any motor vehicle located in a public place after having been found to have committed two (2) civil offenses involving possession of an open beverage container in a public place less than six (6) months previously shall have committed the criminal offense of repeated unlawful possession of an open beverage container in a public place. The offense of repeated unlawful possession of an open beverage container in a public place is designated as a criminal offense, pursuant to 24 V.S.A. § 1974, punishable by penalty of one hundred dollars ($100.00). The charge shall be dismissed and the penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center.

(4)    A person who consumes the contents of an open beverage container in any public place or in any motor vehicle located in a public place after having been found to have committed two (2) civil offenses involving the consumption of an open beverage container in a public place less than six (6) months previously shall have committed the criminal offense of repeated unlawful consumption of an open beverage container in a public place. The offense of repeated unlawful consumption of an open beverage container in a public place is designated as a criminal offense, pursuant to 24 V.S.A. § 1974, punishable by criminal penalty of one hundred dollars ($100.00). The charge shall be dismissed and the penalty shall be waived upon the successful completion of a restorative or reparative justice program through the Community Justice Center.

(5)    Notwithstanding subsections (b)(1) to (4) of this section, it shall not be unlawful to possess an open beverage container or to consume the contents thereof in Oakledge, South, Leddy and North Beach Parks, where consumption of alcoholic beverages is allowed, if the following conditions are observed:

a.    The open beverage container is possessed and the contents consumed between the hours of 7:00 a.m. and 9:00 p.m. daily.

b.    No such possession or consumption occurs on the roadways, sidewalks or parking lots within such parks.

c.    No such possession or consumption is of or from glass containers or beer kegs, so called.

(6)    Notwithstanding subsections (b)(1) through (5) of this section, the parks and recreation commission may give specific advance approval for possession and consumption from open beverage containers, including beer kegs, within city parks up to and after 9:00 p.m. Possession or consumption from open containers within street space rented to restaurants as outdoor serving areas by the Church Street Marketplace commission shall not be a violation of this section.

(7)    Notwithstanding subsections (b)(1) to (4) of this section, it shall not be unlawful to possess an open beverage container or to consume the contents thereof on public property on which such possession or consumption is permitted under a permit issued by the authority having jurisdiction, such as but not limited to a permit issued under the authority of Section 27-5 or an outdoor consumption permit issued by the local control commission.

(c)    Possession by a minor:

(1)    It shall be prohibited, under the terms of this subsection, for any minor to purchase, possess, or consume any malt or vinous beverage or spirituous liquor within the City of Burlington. For proposes of this subsection, a minor is any person who has not yet attained the age of twenty-one (21).

(2)    The odor or presence of malt or vinous beverage or spirituous liquor upon the breath of any minor shall be prima facie evidence of possession for the purposes of this subsection. If a law enforcement officer has reasonable grounds to believe that the minor has consumed any malt or vinous beverage or spirituous liquor, the officer may require the minor to submit to a field evidentiary test.

(3)    The parents, guardian, or custodian of a minor alleged to be in violation of this subsection shall be notified as soon as reasonably possible of the alleged violation.

(4)    A person who violates this subsection commits a civil offense which is punishable by a fine of one hundred fifty dollars ($150.00). At the discretion of the city attorney’s office, the fine may be waived upon the successful completion of an approved alcohol and drug screening program.

(Ord. of 3-12-79; Ord. of 11-15-82; Ord. of 5-20-85; Ord. of 1-9-95; Ord. of 8-9-99; Ord. of 2-5-01; Ord. of 5-14-18)

21-39 Disruption of school operations.

(a)    No person shall conduct himself/herself on school property in such a manner as to harm the welfare of the students or to be detrimental to the orderly and stable operations of the school. The following activities are expressly prohibited on school property:

(1)    Any activity in contravention of the law;

(2)    Any violent or disruptive behavior;

(3)    Any activity which subverts the efficient administration of the students, faculty, staff and/or school.

(b)    When the superintendent of schools or his designee, in the exercise of reasonable judgment, determines that a person is acting in a manner described in subsection (a) above, he may order such person to leave the school property. A refusal to leave after the receipt of such order or the failure to leave within a reasonably prompt period after receipt of such order shall be deemed a violation of this section.

(Ord. of 8-18-80)

21-40 Reserved.

Editor’s note—An ordinance adopted Mar. 12, 2018, repealed § 21-40 which pertained to cruising and derived from ordinances adopted Mar. 30, 1992 and Jan. 9, 1995.

21-41 Impact fees.

(a)    Authority. This section is enacted pursuant to the specific authority granted municipalities to establish impact fees contained in Title 24, V.S.A. Chapter 131

(b)    Purpose. It is the purpose of this section to establish impact fees for new land development (as defined in Title 24, V.S.A. Section 4303) in the city that will appropriately allocate the cost of needed capital projects. To the extent that such capital projects are necessitated by new land development, it is appropriate that the new development should bear an appropriate portion of the costs for providing capital projects. Further, insofar as current residents of the city have contributed to the cost of existing facilities through payment of taxes and other contributions to the city, it is appropriate that they should be relieved from payment for an appropriate portion of the cost of providing these capital projects.

(c)    Establishment of impact fees:

(1)    There is hereby established an impact fee within the city which shall be imposed on all land development commenced within the city subsequent to the effective date hereof [November 13, 1992]. The amount of such impact fees shall be established by a resolution of the city council following receipt of the recommendations of the respective departments and the planning commission. Any such fees adopted through the resolution of the city council shall be based upon a reasonable formula developed pursuant to 24 V.S.A. Section 5203 and to any amendments thereto. The resolution will set forth the impact fee schedule.

(2)    An applicant for a zoning permit for any development, including new projects, revisions and modifications to existing projects or subdivisions, shall be subject to the payment of impact fees for that project.

(3)    An applicant seeking a zoning permit for development of a lot located in a subdivision shall be responsible for the payment of the impact fees for that project. However, upon documentation by an applicant that a fee for this project was paid prior to November 13, 1992, in any current impact fee category, the applicant shall receive a pro rata credit for the payment of the fee in that category. The pro rata credit shall be based on the number of lots in the subdivision.

(4)    The city council may, from time to time, amend any impact fee which is established by resolution pursuant to this section in order to take into account new or changed information regarding the fee earlier established.

(5)    Regulations regarding the implementation and application of this section shall be developed within six (6) months of the effective date of this section.

(d)    Payment of fees:

(1)    Any impact fee established pursuant to this section shall be imposed as a condition of the zoning permit and shall be paid to the office of the city treasurer prior to issuance of the certificate of occupancy granted under the zoning ordinance. The zoning administrative officer shall not issue the certificate of occupancy for such development without first receiving proof of payment of the required impact fees from the office of the city treasurer.

(2)    An impact fee not paid in full at the time required in subsection (1) above shall be a lien upon all property and improvements within the land development for which the fee is assessed in the same manner and to the same effect as taxes are a lien upon real estate under Title 32 V.S.A. Section 5061.

(e)    Appeals. An individual or entity required to pay an impact fee imposed under this section may appeal the fee by filing a written notice with the zoning board of adjustment within thirty (30) days of the imposition of the fee. The notice of appeal shall state the factual basis for the appellant’s claim that the fee is inapplicable or excessive. Within sixty (60) days of receipt of the notice of appeal, the zoning board shall hold a hearing thereon. The zoning board shall take oral and written testimony from the appellant. Within forty-five (45) days after the conclusion of the hearing, the zoning board shall notify the appellant of its decision.

(f)    Accounting provisions. All impact fees collected pursuant to this section shall be maintained annually by the city treasurer in a separate, interest-bearing account. The city treasurer shall maintain a register of the date of payment for each fee collected, the amount paid and the name of the payer, by each capital facility category.

(g)    Expenditure of impact fees:

(1)    All impact fees collected pursuant to this section and accrued interest shall be expended only for the identified capital facility category which was the basis for the fee. Such fees and accrued interest shall be expended for such capital facility category within such time period as required by 24 V.S.A. Chapter 131, as the same may be amended from time to time.

(2)    The city treasurer shall pay expenses associated with an identified capital facility category as they become due and upon receipt of appropriate documentation regarding such expenses.

(h)    Refunds:

(1)    If the actual costs to the city for the provision of a capital facility category to be funded in part by impact fees is less than originally was calculated or if an impact fee is reduced after fees have been collected, the city shall refund that portion of any impact fee and accrued interest which is in excess of the appropriate portion due to the then owner of the property for which the fee was paid.

(2)    Pursuant to 24 V.S.A. Section 5203(e) upon petition by any affected property owner, if the city shall fail to expend any collected impact fee within the time required by this section, the city shall refund that portion of any impact fee and accrued interest to the then owner of the property for which said fee was paid.

(i)    Enforcement. Any individual who occupies a structure in the city without first paying any required impact fee imposed pursuant to this section and any implementing resolution shall be subject to a penalty of two hundred dollars ($200.00) per day for each day that such violation continues, as well as injunctive and other relief as a court may order in a civil action commenced by the city.

(j)    Exemptions:

(1)    In order to encourage the development of additional housing for senior citizens, senior citizen housing projects are exempted from payment of school impact fees.

(2)    In order to enable the development of housing that is affordable for all economic groups within the municipality, any residential project containing newly constructed housing units or substantially rehabilitated housing units that are affordable for households as described in subsections a., b., and c. below would be eligible to receive a waiver of impact fees for that portion of the project. In the application of this provision, the terms used herein shall be interpreted as defined in the "Low or Moderate Income Housing" zoning ordinance. In addition, the rules and regulations developed pursuant to that ordinance shall be used to implement this provision.

a.    Twenty-five percent waiver of fees. Twenty-five (25) percent of the fees will be waived for any unit in a project that initially sells for a price that is affordable for households below ninety (90) percent of median income or that initially rents for a three-year period for a price (including utilities) that is affordable for households below seventy-five (75) percent of median income.

b.    Fifty percent waiver of fees. Fifty (50) percent of the fees will be waived for that portion of a residential project that meets the dual test of initial affordability and continuing affordability. For purposes of this section, "initial affordability" would be defined as a unit that sells for a price that is affordable for households earning less than seventy-five (75) percent of median income or that rents for a price (including utilities) that is affordable for households earning below sixty-five (65) percent of median. "Continuing affordability" would be defined as affordability that lasts for a period of ninety-nine (99) years.

c.    One hundred percent waiver of fees. One hundred (100) percent of the fees will be waived for that portion of a residential project that initially sells or rents for a price that is affordable for households earning less than fifty (50) percent of median income and that remains continually affordable as defined above.

(k)    Off-site improvements. In categories for which impact fees have been charged, no exactions for construction of off-site public facilities will be required by the planning commission as a condition for a zoning permit except for water distribution lines, sewer connection lines and stormwater improvements, and street and sidewalk infrastructure that are essential to the development of the project. For the purpose of this section, "off-site" public facilities are defined as those facilities which are not on or immediately adjacent to the private land proposed for development.

(l)    Severability. In the event any provision of this section is for any reason invalid, such invalidity shall not affect the remaining provisions which can be given effect without the invalid provision.

(Ord. of 10-13-92; Ord. of 3-8-93)

Editor’s note—An ordinance enacted Oct. 13, 1992, amended the Code by adding provisions designated as § 21-40. Inasmuch as the Code already contained provisions designated as § 21-40, the editor has redesignated these new provisions as § 21-41

Cross reference—Buildings and building construction, Ch. 8; subdivisions, Ch. 28.

21-42 Regulation of security alarm systems.

(a)    Purpose. The purpose of this section is to provide for a prompt and efficient police response to security alarm signals throughout the city and to encourage alarm system owners to assume greater responsibility for the proper use and maintenance of such systems in order to prevent unnecessary use of emergency police services.

(b)    Permit required. No person shall utilize or install a security alarm system within the city unless a permit has been obtained for its use from the Burlington police department by the owner of the property upon which the security alarm system is installed.

(1)    Definition. For purposes of this section, a security alarm system shall include any type of assembly used to signal the occurrence of illegal entry or activity. Vehicle alarms shall not be considered security alarms for purposes of this section.

(2)    Term. Permits shall have a term of no more than one (1) year and shall expire June 30 annually.

(3)    Fees. The annual permit fee shall be sixty dollars ($60.00), prorated monthly (five dollars ($5.00)/month or any part thereof).

(4)    Application. The owner of the property upon which the security alarm system is installed shall provide the following information on the permit application:

(a)    Type and location of alarm;

(b)    Name, address and phone number of owner of the property upon which the security alarm system is installed;

(c)    Name and phone number of occupant(s) of property upon which the security alarm system is installed;

(d)    Name, address, and phone number of the person to whom the fees and charges will be sent;

(e)    Name, address and phone number of person to be contacted in the event of an alarm at the site and two (2) alternate contact persons;

(f)    Name, address and phone number of person or company responsible for installing the alarm;

(g)    Name, address and phone number of alarm company responsible for monitoring the alarm system.

(5)    Confidentiality. All information provided in the permit application shall be deemed confidential and shall not be subject to public disclosure.

(c)    Penalty. The installation or utilization of a security alarm system without the filing of a complete application, the payment of the permit fee, or the payment when due of response charges required by this section is a civil offense punishable by a fine of up to five hundred dollars ($500.00) with a waiver penalty of one hundred dollars ($100.00). All duly authorized enforcement officials are authorized to issue a municipal complaint for a violation of this section.

(d)    Response charges.

(1)    Response charges shall be assessed to the owner of the property upon which a security alarm system is installed when the police respond to an alarm and there has been or is no unlawful entry or activity on the property which led to the activation of the alarm. Response charges shall be assessed in the event of:

(A)    The activation of an alarm system through mechanical failure, malfunction, or improper installation;

(B)    The activation of an alarm system through the negligence of the owner or tenant at the property where the alarm system is located or of their employees or agents; or

(C)    The activation of an alarm system through any other cause unrelated to unlawful entry or activity on the property where the alarm system is located.

(2)    Response charges shall be assessed as follows for the period between July 1 and June 30:

(A)    First response—Warning

(B)    Second response—Warning

(C)    Third response—$70.00

(D)    Fourth response—$100.00

(E)    Fifth or subsequent response—$150.00

(Ord. of 1-22-96; Ord. of 7-12-04, eff. 8-11-04; Ord. of 5-21-18)

21-43 Fletcher Free Library.

(a)    Purpose. The purpose of this section is to provide a system of standards for use of the Fletcher Free Library to ensure a safe, secure, relaxing, and pleasing environment for all visitors, library patrons, and staff, while maintaining access to library materials and facilities in order to promote education, reading, research, and learning.

(b)    Scope. This section applies to all persons accessing, using, or otherwise located on, at, or within all buildings and interior or exterior grounds controlled or operating by the Fletcher Free Library.

(c)    Definitions. The following definitions shall apply to this section:

(1)    "Commission" means the library commission.

(2)    "Regulated drug" means any drug as defined in 18 V.S.A. § 4201(29) or any drug prohibited under federal law.

(3)    "Library" means the Fletcher Free Library.

(4)    "Library resources" means any library materials, equipment, furniture, fixtures, or buildings located within the library premises.

(5)    "Library premises" means all buildings, interior portions of buildings, and exterior grounds connected to buildings that are controlled or operated by the Fletcher Free Library.

(d)    Prohibited acts—Class A. The following acts are designated as Class A acts that are prohibited on the library premises:

(1)    Activities or behavior that may result in injury or harm to any other person, including challenging another person to fight or engaging another person to fight.

(2)    Directing a specific threat of physical harm against an individual, group of individuals, or property.

(3)    Engaging in sexual conduct or lewd behavior.

(4)    Possession, use, selling, or distribution of any regulated drug.

(5)    Destroying, abusing, or damaging library resources.

(6)    Using library resources in a manner likely to cause personal injury or injury to other persons or property.

(7)    Having been found liable for committing a Class B prohibited act three (3) or more times in any one (1) calendar year.

(e)    Prohibited acts—Class B. The following acts are designated as Class B acts that are prohibited on the library premises:

(1)    Engaging in conduct that unreasonably disrupts or interferes with the normal operation of the library, or unreasonably disturbs library staff or patrons, including but not limited to, conduct that involves: (a) the use of abusive, threatening, or harassing language or gestures; (b) conduct that creates unreasonable noise; (c) conduct that consists of loud or boisterous physical behavior or talking; or (d) entering staff-only spaces without permission.

(2)    Using library resources in a manner inconsistent with their intended use.

(3)    Being under the influence of alcohol or a regulated drug.

(4)    Possessing an open or unsealed container which contains an alcoholic beverage, or consuming or attempting to consume any alcoholic beverage, except as allowed at a library-approved event.

(5)    Possessing marijuana unless the person is a registered patient in possession of a valid registration card under the provisions of the State of Vermont Therapeutic Use of Cannabis Act at 18 V.S.A. § 4201, et seq.

(6)    Consuming or otherwise using marijuana.

(7)    Smoking or vaping any substance of any kind.

(8)    Having been found liable for a Class C prohibited act three (3) or more times in any one (1) calendar year.

(f)    Prohibited acts—Class C. The following acts are designated as Class C acts that are prohibited on the library premises:

(1)    Failing to abide by posted library rules, including rules for: (a) the acceptable use of the internet and library computers; (b) use of personal electronic equipment; (c) consumption of food or drinks; (d) use of designated library facilities; (e) use of restroom facilities; or (f) personal hygiene.

(2)    Failing to follow the reasonable direction of library staff related to a library rule or policy.

(3)    Use or preparation of tobacco products, bidis, beedies, or tobacco substitutes as those terms are defined in 7 V.S.A. § 1001.

(4)    Leaving personal belongings unattended in a manner that interferes with library staff or other persons on the library premises or placing personal belongings on library resources in a manner that interferes with library staff or use of the library.

(5)    Interfering with the free passage of library staff or visitors to the library.

(6)    Primarily making use of the library premises for sleeping.

(g)    Prohibited acts—Class D. The following acts are designated as Class D acts that are prohibited on the library premises:

(1)    Bringing bicycles or other similar modes of transportation inside library buildings, including, but not limited to, vestibules or covered doorways except that bicycles may be placed on bicycle racks provided in those areas.

(2)    Bringing animals into library buildings, with the exception of service animals or animals brought to a library-approved event where animals are permitted. Animals brought into library buildings must always remain under the control of the owner and not create a disturbance.

(3)    Leaving animals tethered or otherwise unattended on the library premises.

(4)    Soliciting, petitioning, or canvassing unless the activity is part of a program in a space designated for or expressly permitting the activity.

(5)    Taking library resources into restrooms.

(6)    Using roller skates, skateboards, or other similar devices.

(7)    Leaving children under the age of nine (9) without the supervision of a person over the age of sixteen (16) who is taking an active role in attending to and supervising the child.

(8)    Entering or remaining in library buildings without proper footwear or clothing.

(9)    Storing or using personal materials such as bedrolls, sleeping bags, large bags, or suitcases.

(h)    Enforcement. Penalties for violations of this section shall be as follows:

(1)    Class A prohibited acts. Any person that has committed a Class A prohibited act under this section shall have committed a civil offense and be subject to a fine of three hundred dollars ($300.00) (with a two hundred fifty dollar ($250.00) waiver penalty). The director of the library, or designee, is authorized to issue a Vermont municipal complaint for a violation of subsection (d) of this section.

(2)    Class B prohibited acts. Any person that has committed a Class B prohibited act under this section shall have committed a civil offense and be subject to a fine of one hundred fifty dollars ($150.00) (with a one hundred twenty-five dollar ($125.00) waiver penalty). The director of the library, or designee, is authorized to issue a Vermont municipal complaint for a violation of subsection (e) of this section.

(3)    Class C prohibited acts. Any person that has committed a Class C prohibited act under this section shall have committed a civil offense and be subject to a fine of fifty dollars ($50.00) (with a thirty dollar ($30.00) waiver penalty). The director of the library, or designee, is authorized to issue a Vermont municipal complaint for a violation of subsection (f) of this section. Failure to correct the prohibited act shall result in dismissal from the library premises for the remainder of the day after an opportunity to be heard by the director of the library, or designee.

(4)    Class D prohibited acts. Any person that has committed a Class D prohibited act under this section will be asked to correct the prohibited conduct immediately. Failure to correct the prohibited act shall result in dismissal from the library premises for the remainder of the day after an opportunity to be heard by the director of the library, or designee.

(i)    Trespass. In addition to any other penalties set forth in this section, the director of the library, or designee, may issue a notice of trespass to any person who has committed a Class A or Class B or Class C prohibited act in accordance with this subsection (i).

(1)    Initial determination. If the library director, or designee, determines that a person has violated subsection (d), (e), or (f) of this section, the library director, or designee, may issue a notice of trespass against that person only after that person has received notice of intent to issue a notice of trespass and has been given the opportunity to be heard by the director, or designee, on the grounds for or extent of the notice. If, after giving the person the opportunity to present evidence, the director, or designee, determines that trespass is still warranted, the library director shall issue a notice of trespass to that person, which shall state the prohibited act committed, the date and time the act was committed, the contact information of the person issuing the notice of trespass, the trespass period, the effective date of the trespass notice if not appealed, the consequences of violating the notice of trespass, and information on how to appeal the notice of trespass. The notice of trespass must be hand delivered or sent via first class mail to the last known mailing address. The notice of trespass shall become effective immediately upon issuance.

(2)    Appeal procedure. The notice of trespass may be appealed to the commission by filing a written notice of appeal. The notice of appeal must be received by the library within three (3) business days of issuance of the notice of trespass. The notice of appeal shall set forth the basis for the appeal and include valid contact information, including a mailing and/or email address. Failure to file a timely petition shall constitute a waiver of any right to appeal the notice of trespass.

(3)    Hearing. Except as otherwise directed by the commission, the appeal shall be heard within ten (10) business days following receipt of the appeal. The hearing before the commission shall be on the record. The commission shall consider the preponderance of the evidence and the burden of proof is on the library director, or designee. The commission shall render a decision at the conclusion of the hearing and mail a certified copy of the decision to the last known mailing address. The decision of the commission shall be deemed final and effective upon issuance.

(4)    Judicial review. The decision of the commission may be appealed under Rule 75 of the Vermont Rules of Civil Procedure.

(5)    Restorative justice. A person may choose to engage in a restorative justice process with the Burlington Community Justice Center that could adjust the duration of the trespass and the fine. The notice of willingness to engage in the restorative justice process must be communicated to the library either in person, by phone, electronic mail, or first class mail within seven (7) business days of issuance of the notice of trespass.

(6)    Duration. A person that has committed a Class A prohibited act shall be subject to a notice of trespass for one hundred eighty (180) days. A person that has committed a Class B prohibited act shall be subject to a notice of trespass for sixty (60) days. A person that has committed a Class C prohibited act shall be subject to a notice of trespass for one (1) day.

(j)    Protection of library property; penalties.

(1)    The city may recover in a civil action damages for detained or damaged library property, together with costs and reasonable attorney’s fees. Damages may include both delinquent fines and replacement fees.

(2)    A person who willfully damages or defaces or removes without authorization any recording, book, or object available for public use or loan from the library shall be fined not more than one hundred dollars ($100.00) for each offense. Each piece of library material shall be a single offense.

(3)    A library patron who detains library property for more than ninety (90) days after being provided written notice to return the property shall be fined an amount equivalent to the replacement cost of the material wrongfully detained, including the staff time to replace it, up to a maximum of five hundred dollars ($500.00).

(Ord. of 3-9-20(1))

21-44 Local sales tax enacted.

Pursuant to the authority of H. 883 of the 2006 Session of the Vermont General Assembly, a one (1) percent sales and use tax is imposed upon taxable sales within the city. The tax shall be upon all sales that are subject to the imposition of the State of Vermont Sales and Use Tax pursuant to the authority of T. 32 Vermont Statutes Annotated, Chapter 233 as the same may be amended from time to time. All exemptions from such Vermont Sales and Use Tax shall be applicable to this tax. The office of the chief administrative officer may promulgate regulations to aid in the assessment, collection and interpretation of the Section so long as such regulations are not inconsistent herewith. This tax shall be collected and administered by the State of Vermont Department of Taxes pursuant to the terms of such Act H. 883. This section shall take effect July 1, 2006 and apply to all sales on and after that date which are subject to the provisions of this section.

(Ord. of 5-22-06/6-21-06)

21-45 Unlawful trespass.

It shall be unlawful for a person who, without legal authority or the consent of the person in lawful possession, enters or remains on any land or in any place as to which notice against trespass is given by:

(a)    Actual communication by the person in lawful possession or his agent or by a law enforcement officer acting on behalf of such person or his agent; or

(b)    Signs or placards so designed and situated as to give reasonable notice.

A violation of this section shall be a civil matter and enforced in accordance with the provisions of 24 V.S.A. section 1974a and section 1977 et seq. A civil penalty of not more than five hundred dollars ($500.00) may be imposed for a violation of this section. The civil penalty may, at the discretion of the prosecuting official, be eliminated or reduced upon the successful completion of a restorative or reparative justice program through the community justice program. In lieu of further process and prosecution, persons ticketed for violations of this section may pay a waiver penalty under the schedule set out below:

Waiver Penalty:

First offense: The waiver penalty shall be two hundred fifty dollars ($250.00).

Second offense, within a six-month period: The waiver penalty shall be three hundred dollars ($300.00).

Third offense or more, within a twelve-month period: The waiver penalty shall be four hundred dollars ($400.00).

Each time that the violation occurs will constitute a separate violation of this section. Any law enforcement officer can enforce this section.

(Ord. of 7-13-09(1); Ord. of 7-13-09(3))

21-45A Notice of trespass on city property.

(a)    Purpose. The purpose of this section is to enable a city official in charge of city property to issue a notice of trespass and enforce that notice against an individual whose behavior is dangerous, illegal, or unreasonably disruptive, while recognizing the rights of individuals to engage in constitutionally protected activities on public or city-owned property.

(b)    City official authorized to issue notice of trespass. The city council hereby expressly delegates its authority to issue a notice of trespass to any city official who is in charge, at the time of issuance, of the city property for which the notice of trespass is issued and to any sworn officer of the Burlington police department in the exercise of their official duties.

(c)    Issuance of notice of trespass – Initial conference. If an individual violates any city ordinance, rule or regulation, or State law, or within a public building fails to follow the lawful directive of a city official or police officer authorized under subsection (b) of this section, that official may issue a notice of trespass for a violation which was committed while on or within a city facility, building, or outdoor area, including a municipal park, for the specific property where the violation occurred, excluding a right-of-way. Prior to issuance of the notice of trespass, the issuing official must ensure that the person to whom a notice of trespass will be issued has been informed of the basis for the notice of trespass and has been given an opportunity and reasonable amount of time to change or address the underlying conduct – that is, a verbal warning must have been issued. No verbal warning is required if the reason for the trespass is an accusation of serious harmful conduct such as arson, assault, harassment or a threat of such conduct. Notices of trespass may be issued at the Fletcher Free Library as provided in Section 21-43.

(d)    Service of notice – Content. In most cases, the notice of trespass must be hand-delivered to the person to whom it is issued by an authorized city official or a law enforcement officer; however, if the circumstances do not permit safe delivery of the notice in person, in the discretion of the authorized city official or law enforcement officer, it may be mailed to the individual’s legal address. The written notice of trespass shall detail the basis for which the notice of trespass was issued, the length of time for which the notice of trespass remains in effect, and the consequences for violating the terms of the notice of trespass; it shall also advise the recipient of the right to contest the notice of trespass and the location at which to file the appeal.

(e)    Length of notice of trespass.

(1)    Generally. For minor, first-time violations, such as having an open container of alcohol, the notice may be issued for up to one (1) day. For moderate violations, such as other nonviolent disorderly conduct, or for a second offense within thirty (30) days, the notice may be issued for up to thirty (30) days. For more serious violations or a third offense within sixty (60) days, the notice may be issued for up to one hundred eighty (180) days. Generally, it is expected that the length of time should reflect the severity or repetitiveness of the underlying conduct. Only for more serious offenses such as conduct that involves violence, harassment, or threats of physical harm to an individual may a notice be issued for over one hundred eighty (180) days, and in any event, a notice of trespass may not be issued for more than one (1) year.

(2)    Fletcher Free Library. Due to the nature and character of the Fletcher Free Library, the following durations apply to violations made under the library ordinance. For a violation of Section 21-43(a)(1), a notice of trespass may be issued for up to one hundred eighty (180) days. For a violation of Section 21-43(a)(2), a notice of trespass may be issued for a period up to sixty (60) days. For a violation of Section 21-43(a)(3), a notice of trespass may be issued for a period of one (1) day.

(f)    Appeal.

(1)    Process. The recipient of a notice of trespass may appeal the notice of trespass by filing an appeal, in writing, within seven (7) calendar days of the issuance of the notice. The written appeal shall include the appellant’s name, address, phone number, and indicate whether a hearing is requested. No fee shall be charged for filing the appeal. The appeal shall be filed at the location designated in the notice of trespass. Except for in exigent circumstances, any such appeal shall stay the operation of the notice of trespass beyond the day the appeal is filed, pending a hearing and/or written decision.

(3)    Exigent circumstances. For purposes of this chapter, "exigent circumstances" means any situation in which the issuing city official or officer determines that a person presents an immediate and substantial threat or danger to the health, safety, or welfare of another person. In such circumstances, an appeal shall not stay the operation of the notice of trespass.

(2)    Designated hearing panels. All appeals made under this chapter shall be heard by the public safety committee of the city council, which will make an annual report to the city council on the number of appeals.

(3)    Procedure. When an appeal is filed, the designated hearing panel shall meet within ten (10) business days to consider the appeal. If no hearing is requested, the designated hearing panel may consider any written submissions as part of its decision. If a hearing is requested, the appellant must be provided at least three (3) business days’ written notice of the date, time, and location of the hearing. The designated hearing panel shall allow oral and/or written testimony and evidence from the appellant and the issuing city official or officer. In reviewing the notice of trespass, the panel will utilize the preponderance of the evidence standard with the burden of proof on the charging official or their representative. The designated hearing panel shall issue a written decision within ten (10) business days of the hearing. The designated hearing panel may extend the time period for hearing if the operation of the notice of trespass is stayed or if the appellant consents.

(4)    Waiver requests. An individual who has received a notice of trespass may request a waiver from the issuing official (or in the absence of that official from another city official authorized to issue the notice) in order to access the property for which the notice of trespass was issued for purpose of work, residence, access to government services, or the exercise of constitutionally protected activities. If that waiver is denied, an appeal may be made to the designated hearing panel. In addition, in the context of any appeal of a notice of trespass, the designated hearing panel shall also consider any waiver request from the individual appealing.

(g)    Enforcement. Once a notice of trespass has been issued, unless the notice has been stayed by receipt of an appeal or the notice has been overturned by a decision on appeal, a violation of the notice may be enforced pursuant to Section 21-45 (a civil violation) or 13 V.S.A. § 3705 (a criminal violation). Unless the notice of trespass was issued for conduct involving violence, harassment, or threats of physical harm to an individual, enforcement pursuant to 13 V.S.A. § 3705 may only commence with issuance of a citation and a request to leave the premises; however, arrest is permissible for refusal to leave the premises within a reasonable period after issuance of the citation.

(Ord. of 10-5-20)

21-46 Disorderly conduct.

It shall be unlawful for a person who, with the intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:

(a)    Engages in fighting or in violent, tumultuous or threatening behavior; or

(b)    Makes unreasonable noise; or

(c)    In a public place uses abusive or obscene language; or

(d)    Without lawful authority, disturbs any lawful assembly or meeting or persons; or

(e)    Obstructs vehicular or pedestrian traffic.

A violation of this section shall be a civil matter and enforced in accordance with the provisions of 24 V.S.A. section 1974a and section 1977 et seq. A civil penalty of not more than five hundred dollars ($500.00) may be imposed for a violation of this section. The civil penalty may, at the discretion of the prosecuting official, be eliminated or reduced upon the successful completion of a restorative or reparative justice program through the community justice program. In lieu of further process and prosecution, persons ticketed for violations of this section may pay a waiver penalty under the schedule set out below:

Waiver Penalty:

First offense: The waiver penalty shall be two hundred fifty dollars ($250.00).

Second offense, within a six-month period: The waiver penalty shall be three hundred dollars ($300.00).

Third offense or more, within a twelve-month period: The waiver penalty shall be four hundred dollars ($400.00).

Each time that the violation occurs will constitute a separate violation of this section. Any law enforcement officer can enforce this section.

(Ord. of 7-13-09(2); Ord. of 8-10-09(1))

21-47 Unlawful mischief.

It shall be unlawful for a person who, having no right to do so or any reasonable ground to believe that he has such a right, intentionally does damage to property of any value not exceeding two hundred fifty dollars ($250.00).

A violation of this section shall be a civil matter and enforced in accordance with the provisions of 24 V.S.A. section 1974a and section 1977 et seq. A civil penalty of not more than five hundred dollars ($500.00) may be imposed for a violation of this section. The civil penalty may, at the discretion of the prosecuting official, be eliminated or reduced upon the successful completion of a restorative or reparative justice program through the community justice program. In lieu of further process and prosecution, persons ticketed for violations of this section may pay a waiver penalty under the schedule set out below:

Waiver Penalty:

First offense: The waiver penalty shall be two hundred fifty dollars ($250.00).

Second offense, within a six-month period: The waiver penalty shall be three hundred dollars ($300.00).

Third offense or more, within a twelve-month period: The waiver penalty shall be four hundred dollars ($400.00).

Each time that the violation occurs will constitute a separate violation of this section. Any law enforcement officer can enforce this section.

(Ord. of 6-15-09; Ord. of 7-13-09(4))

21-48 City Hall Park.

(a)    Prohibited activities. Not withstanding other rules and regulations, the following activities are prohibited at City Hall Park and may be ticketed under this section.

(1)    Disorderly conduct. Any person who, with the intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:

a.    Engages in fighting or in violent, tumultuous or threatening behavior; or

b.    Makes unreasonable noise; or

c.    In a public place uses abusive or obscene language; or

d.    Without lawful authority, disturbs any lawful assembly or meeting or persons; or

e.    Obstructs vehicular or pedestrian traffic.

(2)    Unlawful mischief. Any person who, having no right to do so or any reasonable ground to believe that he has such a right, intentionally does damage to property, private or public.

(3)    Possession of open or opened intoxicating liquor as defined in 23 V.S.A. § 1200(4), except as permitted pursuant to an outdoor consumption permit for properly organized and supervised activities or events held within the limits of City Hall Park.

(4)    Possession of a regulated drug as defined in 18 V.S.A. § 4201(29).

(b)    Enforcement.

(1)    First offense. Any violation of any provision of subsection (a) above shall be deemed a civil offense and shall be punishable by a penalty of a minimum fine of two hundred dollars ($200.00) to a maximum fine of five hundred dollars ($500.00). The waiver penalty for purposes of the municipal complaint (civil ticket) shall be two hundred dollars ($200.00). The recipient of a municipal complaint for violation of this section (first offense) shall not be permitted within the City Hall Park for the balance of the day on which the alleged offense occurred.

(2)    Second offense. Any violation of any provision of subsection (a) above by an individual who has previously violated any provision of subsection (a) above shall be deemed a civil offense and shall be punishable by a penalty of a minimum fine of three hundred dollars ($300.00) to maximum fine of five hundred dollars ($500.00). In addition, the recipient of a municipal complaint for violation of this section (second offense) may be issued an order of no trespass prohibiting the recipient from entering the City Hall Park for a period of up to 90 days commencing immediately upon said issuance. The waiver penalty for purposes of the municipal complaint (civil ticket) second offense shall be three hundred dollars ($300.00); payment of which shall also be deemed acceptance of the no trespass order. Both the fine and the no trespass order may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the community justice program.

(3)    Third and subsequent offense. Any violation of any provision of subsection (a) above by an individual who has on two (2) or more occasions violated any provision of subsection (a) above shall be deemed a civil offense and shall be punishable by a penalty of from four hundred dollars ($400.00) to five hundred dollars ($500.00). In addition, the recipient of a municipal complaint for violation of this section (third and subsequent offense) may be issued an order of no trespass prohibiting the recipient from entering the City Hall Park for a period of up to one (1) year commencing immediately upon said issuance. The waiver penalty for purposes of the municipal complaint (civil ticket) third or subsequent offense shall be four hundred dollars ($400.00); payment of which shall also be deemed acceptance of the no trespass order. Both the fine and the no trespass order may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the community justice program.

(Ord. of 11-22-10)

21-49 Church Street Marketplace District trespass authority.

(a)    Purpose. The Burlington city council finds and declares that the following substantial government interests will be advanced by the ability to issue a no trespass order created by this section, based on conditions the police department and the Church Street Marketplace District commission have identified and confront in the Church Street Marketplace District on a regular basis:

(1)    The abatement or removal of nuisances determined to be against the public health, safety or welfare of citizens;

(2)    The protection of citizens from physical threats or injury and from damage to property;

(3)    The prevention of harassment and intimidation of any member of the public;

(4)    The prevention of violent crime;

(5)    The orderly control and safety of pedestrian, car and cart traffic on Church Street; and

(6)    The provision and maintenance of a safe, attractive environment in areas designed to attract tourist revenue.

(b)    Findings. The substantial government interests identified in subsection (a) of this section are undermined by unlawful and inappropriate behavior in the Church Street Marketplace District. Such behaviors include, but are not limited to, disorderly conduct, unlawful mischief, the possession and consumption of intoxicating liquor, and the possession and use of regulated drugs.

Specifically:

(1)    Unlawful behavior within the Church Street Marketplace District diminishes this public asset and deprives citizens and visitors of its full use and enjoyment;

(2)    In addition to more serious criminal acts that threaten personal injury and property damage, a wide range of illegal disorderly behaviors can and often do transform the Church Street Marketplace District into an unwelcoming, unattractive and ultimately unsafe public space requiring increased expenditures for public safety and maintenance;

(3)    Laws intended to preserve and protect public spaces like the Church Street Marketplace District for the benefit of all people are effective only if those present on the space obey the law. The current criminal and civil penalties for violating these types of laws are frequently inadequate to deter the illegal behavior, to prevent its recurrence, or to provide for the removal of offenders from the public space;

(4)    Compliance with behavior laws within the Church Street Marketplace District will be enhanced by the immediate administrative sanction of removing offenders from the Church Street Marketplace District in addition to issuing tickets to them. For repeat offenders and for more serious offenses, exclusion for extended periods will further provide a necessary additional remedy to protect the public;

(5)    The failure to comply with these and other laws creates a public nuisance.

(c)    Prohibited activities. Notwithstanding other laws, ordinances, rules and regulations, the following activities are prohibited within the Church Street Marketplace District and may result in a no trespass order authorized under this section.

(1)    Disorderly conduct as defined by Section 21-46;

(2)    Unlawful mischief as defined by Section 21-47;

(3)    Possession of open or opened intoxicating liquor as defined by 23 V.S.A. § 1200(4), except as permitted pursuant to a valid liquor license and/or an outdoor consumption permit for properly organized and supervised activities or events held within the limits of the Church Street Marketplace District;

(4)    Possession of a regulated drug as defined in 18 V.S.A. § 4201(29).

(d)    Enforcement.

(1)    First offense. Any person ticketed for a prohibited activity noted in subsection (c) of this section as a first offense may also be issued an order of no trespass, and will not be permitted within the Church Street Marketplace District for the balance of the day on which the alleged offense occurred.

(2)    Second offense. Any person ticketed for a prohibited activity noted in subsection (c) of this section as a second offense may also be issued an order of no trespass prohibiting the recipient from entering the Church Street Marketplace District for a period of up to ninety (90) days, commencing immediately upon said issuance.

(3)    Third and subsequent offense. Any person ticketed for a prohibited activity noted in subsection (c) of this section as a third or subsequent offense may also be issued an order of no trespass prohibiting the recipient from entering the Church Street Marketplace District for a period of up to one (1) year commencing immediately upon said issuance.

(4)    Hearing procedure and staying of order of no trespass.

a.    Recipients of an order of no trespass issued pursuant to subsections (d)(2) and (3) of this section may appeal said order to a hearing panel designated by the Church Street Marketplace commission pursuant to the procedure detailed below. Any such appeal shall stay the order of no trespass pending the hearing and written decision of the hearing panel.

b.    Any individual subject to the trespass provisions of subsection (d)(1), (2), or (3) of this section may request in writing that a hearing panel of the Church Street Marketplace commission hold a public hearing for the purpose of challenging the issuance of the order of no trespass and/or to request a waiver to access the Church Street Marketplace District for purpose of work, residence, access to government services, the exercise of constitutionally protected activities, and/or for any other good reason as determined by a hearing panel.

c.    Recipients shall have thirty (30) days from the date of issuance of an order of no trespass to request a hearing. Requests shall be sent to the executive director of the marketplace commission at 2 Church Street, Suite 2A, Burlington, VT 05401-4457.

d.    If a hearing is requested, the hearing shall be scheduled within ten (10) calendar days of receipt of the request, and a written notice of the hearing shall be sent to the recipient at least seven (7) calendar days prior to the hearing.

e.    The hearing panel shall consist of three (3) people designated by the Church Street Marketplace commission or its designee, and be comprised of one (1) representative from the business community, one (1) representative from the social services community, and one (1) representative from the general public.

f.    The hearing panel shall allow for oral and/or written testimony and evidence from the recipient of the order of no trespass, the issuing police officer, and any other witnesses requesting to be heard.

g.    The hearing panel shall issue a written decision within ten (10) calendar days of the hearing.

(Ord. of 2-11-13)