Unenforcable: Unshoveled sidewalk cases thrown out
Even though snow blocked sidewalks all over town for weeks following major snowstorms in what was a record-breaking winter, no one has been convicted under Charlottesville's ordinance requiring snow removal from public sidewalks.
The snow removal ordinance hit another hurdle this week when judges dismissed charges against five people and businesses, including McDonald's, Wendy's and Yellow Cab, who were cited in February for not shoveling.
Defense attorney Andre Hakes argued in Charlottesville General District Court March 12 that Virginia's Dillon's Rule, which says a locality can only adopt laws that are allowed by state law, does not give the city authority to make unshoveled walks a Class 1 misdemeanor, which carries penalities of up to 12 months in jail and/or a $2,500 fine.
"There is no state law authority for criminalization of violations," explains Hakes. What Virginia Code does provide, she says, is that municipalities can compel abatement of nuisances like unshoveled sidewalks, but has to handle it in the same manner as it collects taxes–- by sending a bill.
"Basically this is a civil statute," she says. The city can clean up snow-clogged sidewalks and bill the owner as it does for unmowed grass. "It just isn't a Class 1 misdemeanor," she says.
As a result of her argument that dismissed four cases March 12, another accused non-shoveler's case was thrown out of court March 16.
"The city can only impose a penalty that's authorized by the Code of Virginia," Judge Bob Downer told Tim Kirk. "This ordinance doesn't follow code. A Class 1 misdemeanor is far more severe than what's allowed."
Downer said the city is probably going to change its code and the fine would be about $100. "It's probably cheaper to pay someone to shovel snow," he suggested to Kirk.
"I'm a procrastinator," says Kirk after the hearing. "I hoped the snow would melt."
He lives on Monticello Avenue, and says he was warned to clear the walkways within 12 hours on February 12 , but had to work three 12-hour shifts, and didn't get the shoveling done. He went to Kmart to buy a shovel February 16, but that was too late to avoid the summons that day.
"I was so scared and embarrassed," confesses Kirk. "Somebody could have hurt themselves."
"If it's not enforceable, the city needs to rewrite the law to be in compliance," says Kevin Cox, who is on the Pedestrian Safety Committee. He notes that the city amended the ordinance in 2003.
He wants a committee to draft the snow-removal ordinance. "I hope the city will listen to the Pedestrian Safety Committee, the chief of police and the city attorney," he adds.
Deputy city attorney Richard Harris is the man charged with looking at the ordinance, and says that task just landed on his desk. "I believe we have the authority to impose criminal code," he says.
Kevin Cox and Police Chief Tim Longo have both called making non-shoveling a Class 1 misdemeanor "ridiculous."
Says Harris, "Is it legal? Yes. Is it reasonable? That's for Council to decide."