Document Lewiston_doc_b78e5b2d54

Lewiston Code Chapter 50 CH 50:1 Chapter 50 OFFENSES AND MISCELLANEOUS PROVISIONS Article I. In General Sec. 50-1. Aiding or abetting. Sec. 50-2. False information to police. Sec. 50-3. Obedience to police. Sec. 50-4. Loitering, lurking for malicious, unlawful purposes; peeping Toms. Sec. 50-5. Loitering generally. Sec. 50-6. Desecration and defacement. Sec. 50-7. Removing or destroying public plants, fixtures. Sec. 50-8. Defacing fences. Sec. 50-9. Public indecency. Sec. 50-10. Police supervision of public gatherings; fee. Sec. 50-11. Improper conduct; dispersing of assembly. Secs. 50-12--50-35. Reserved. Article II. Citation System of Code Enforcement Sec. 50-36. Purpose. Sec. 50-37. Applicability. Sec. 50-38. Investigations. Sec. 50-39. Notice of violation. Sec. 50-40. Civil proceedings. Sec. 50-41. Citations--Issuance. Sec. 50-42. Same--Contents. Sec. 50-43. Same--Service of. Sec. 50-44. Time limits for corrective action. Sec. 50-45. Penalty. Sec. 50-46. Further violations. Sec. 50-47. Penalty for nonpayment of penalty; collection proceedings. Sec. 50-48. Repeat violations. Sec. 50-49. Appeals. Sec. 50-50. Effect of article on other ordinances. Sec. 50-51. Severability of provisions. Secs. 50-52--50-70. Reserved. Article III. Minors Division 1. Generally Sec. 50-71. Employment of underaged persons in alcoholic beverage establishments. Secs. 50-72--50-80. Reserved. Division 2. Curfew Sec. 50-81. Definitions. ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:2 Sec. 50-82. Offenses. Sec. 50-83. Defenses. Sec. 50-84. Enforcement. Sec. 50-85. Penalties. Sec. 50-86. Severability. Sec. 50-87. Effective date. Secs. 50-85--50-105. Reserved. Article IV. Weapons and Explosives Sec. 50-106. Permit to carry concealed weapons. Sec. 50-107. Discharging firearms. Sec. 50-108. Blasting restricted; permit. Sec. 50-109. Storage limit on gunpowder unless licensed. Sec. 50-110. License to sell gunpowder; appeal. Sec. 50-111. Exception. Secs. 50-112--50-160. Reserved. Article V. Obscenity Sec. 50-161. Definitions. Sec. 50-162. Wholesale promotion of obscene material or devices. Sec. 50-163. Validity. Sec. 50-164. Penalty. Sec. 50-165. Application of violations to liquor licenses and special amusement permits. Secs. 50-166--50-180. Reserved. Article VI. Operation of Noise-Creating Devices Upon Public Rights-of-way Sec. 50-181. Purpose. Sec. 50-182. Definitions. Sec. 50-183. Creation of certain noises upon a public right-of-way prohibited. Sec. 50-184. Exceptions. Sec. 50-185. Penalty. Secs. 50-186--50-199. Reserved. Article VII. Graffiti Violations Sec. 50-200. Purpose. Sec. 50-201. Definitions. Sec. 50-202. Prohibited acts. Sec. 50-203. Prohibited possession of graffiti implements. Secs. 50-204--50-210. Reserved. Sec. 50-211. Penalties. ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:3 ARTICLE I. IN GENERAL Sec. 50-1. Aiding or abetting. The prohibition of any act by any ordinance of the city, or in any amendment thereof, shall include the causing, securing, aiding or abetting of another person to do such act. (Code 1982, § 19-1) Sec. 50-2. False information to police. It shall be unlawful for any person to give any information or report to the department of police or to any member of such department, relating to any crime or offense, which information or report is false and which information or report such person knows to be false. (Code 1982, § 19-3) Sec. 50-3. Obedience to police. No person shall willfully fail or refuse to comply with any lawful order or direction of a police officer. (Code 1982, § 19-4) Sec. 50-4. Loitering, lurking for malicious, unlawful purposes; peeping Toms. No person shall loiter or lurk in any of the streets or public places adjacent thereto for malicious or unlawful purposes. No person shall loiter unnecessarily in or about any private dwelling or peep into the window of any private dwelling to the discomfort or alarm of the occupants of such dwelling, the neighbors or any person going to and from such dwelling. (Code 1982, § 19-8) Sec. 50-5. Loitering generally. It shall be unlawful for any person to loiter, loaf, wander, stand or remain idle either alone and/or in consort with others in a public place in such manner so as to commit in or upon any public street, public highway, public sidewalk or any other public place or building any act or thing which is an obstruction or interference to the free and uninterrupted use of property or with any business lawfully conducted by anyone in or upon or facing or fronting on any such public street, public highway, public sidewalk or any other public place or building, all of which prevents the free and uninterrupted ingress, egress and regress therein, thereon and thereto. When any person causes or commits any of the conditions enumerated in subsection of this section, a police officer or any law enforcement officer shall order that person to stop causing or committing such conditions and to move on or disperse. Any person who fails or refuses to obey such orders shall be guilty of a violation of this section. (Code 1982, § 19-9) ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:4 Sec. 50-6. Desecration and defacement. A person is guilty of desecration and defacement if he intentionally desecrates any public monument or structure, any place of worship or burial, or any private structure not owned by him. As used in this section, "desecrate" means marring, defacing, damaging or otherwise physically mistreating, in a way that will outrage the sensibilities of an ordinary person likely to observe or discover the actions. Desecration is an offense. (Code 1982, § 19-13) State law references: Similar provisions, 17-A M.R.S.A. § 507. Sec. 50-7. Removing or destroying public plants, fixtures. No person shall climb, peel, cut, remove or in any way deface or destroy any tree, shrub, plant, sign or fixture on the commons, cemeteries, parks or in any street or public place of the city; nor deface any public building or any building not his own, by cutting, breaking, dashing with paint or in any manner defacing or injuring such building. (Code 1982, § 19-11) Cross references: Parks and recreation, ch. 54. Sec. 50-8. Defacing fences. No person shall deface any fence around the parks, commons or public squares by putting up billboards or posting bills thereon, or in any other way. (Code 1982, § 19-12) Sec. 50-9. Public indecency. A person is guilty of public indecency if: In a public place: a. He engages in sexual intercourse or a sexual act, as defined in 17-A M.R.S.A. § 251; or b. He knowingly exposes his genitals under circumstances which, in fact, are likely to cause affront or alarm; or In a private place, he exposes his genitals with the intention that he be seen from a public place or from another private place. For purposes of this section "public place" includes, but is not limited to, motor vehicles which are on a public way. Public indecency is an offense. (Code 1982, § 19-14) State law references: Similar provisions, 17-A M.R.S.A. § 854. ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:5 Sec. 50-10. Police supervision of public gatherings; fee. The chief of police when notified of the plans for any public gathering shall, if in his judgment police supervision of such public gathering shall be required in order to maintain and preserve the public health, safety and morals, assign such number of police officers to supervise such public gathering as may be necessary in his judgment to carry out the provisions of this section. The fee to be paid any officer acting in accordance with this section shall be determined by the city council and shall be paid by the person conducting the event causing such public gathering. (Code 1982, § 19-15) Cross references: Outdoor pageants, music festivals, concerts, etc., § 10-3. Sec. 50-11. Improper conduct; dispersing of assembly. If a policeman at a public gathering has probable cause to believe any illegal or unlawful conduct is occurring in the place of assembly, he shall order the assembly dispersed. (Code 1982, § 19-16) Secs. 50-12--50-35. Reserved. ARTICLE II. CITATION SYSTEM OF CODE ENFORCEMENT Sec. 50-36. Purpose. The purpose of this article is to provide additional and alternative methods and processes to enforce the provisions of this Code in a just, speedy and inexpensive manner, to improve compliance with the provisions of this Code and thereby to protect, preserve and enhance the public health, safety and general welfare. (Code 1982, § 2-700) Sec. 50-37. Applicability. This article shall provide a method for enforcing and securing compliance with the various provisions of the Code of Ordinances, which is in addition to those methods otherwise contained in the Code. Any and all inspectors and enforcement officials under the various provisions of this Code are referred to in this article collectively as enforcement officials. (Code 1982, § 2-701) Sec. 50-38. Investigations. Upon receipt of information indicating the likelihood of a violation of any provision of this Code, the enforcement official shall investigate the facts and may make an inspection of the premises when legally authorized to do so. (Code 1982, § 2-702) ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:6 Sec. 50-39. Notice of violation. If an investigation reveals that a code violation has occurred, the enforcement official shall give written notice of such violation to the person (here inafter "violator") having control of any land, building, structure, sign, licensed or permitted business or operation which is in violation and order that the violation be corrected. Notice of the violation may be served in hand to the violator or left with a person of suitable age and discretion at the residence or place of business of the violator or mailed by certified mail, return receipt requested, to his last known address. If the return receipt is not returned, a notice shall be conclusively presumed to have been served if it is also sent by regular mail, postage prepaid, which is not returned as undeliverable by the postal service. If the enforcement official finds that the violation is one which requires immediate correction to protect the public health or safety, he may provide notice under this article by means of telephone or facsimile transmission to the violator or to a person of suitable age and discretion at the residence or place of business of the violator. Any notice under this article shall describe the violation, including a reference to the ordinance section violated, specify that reasonable period within which the violation must be corrected, and state the potential consequences if the violation is not corrected. The notice shall also advise the violator of any right to appeal to the board of appeals with respect to the enforcement official's determination that a violation exists for which the violator is responsible. (Code 1982, § 2-703) Sec. 50-40. Civil proceedings. If the violation has not been corrected within the period established in the notice, the enforcement official or city attorney may initiate appropriate legal proceedings to compel the violator to correct the violation and seek whatever other relief to which the city may be entitled. Such legal proceedings may include the initiation of a land use complaint pursuant to Rule 80K of the Maine Rules of Civil Procedure and 30-A M.R.S.A. § 4452 et seq., as amended. (Code 1982, § 2-704) Sec. 50-41. Citations--Issuance. If the violation has not been corrected within the period established in the notice, the enforcement official may issue, as an alternative to initiating a civil proceeding pursuant to section 50-40, a citation to the violator. (Code 1982, § 2-705) Sec. 50-42. Same--Contents. The citation shall be in writing, describe the nature of the violation, including the ordinance section violated, state the date by which the violation must be corrected, that a civil penalty set in accordance with the city's policy manual as approved by the city council is imposed for the violation, the date by which the penalty must be paid and to whom and the consequences of failing to pay the penalty within the period stated. The time period allowed by the enforcement official within which the violation must be corrected shall be reasonable and shall take into consideration any notice period previously given to the violator, the nature of the violation to be corrected and the time which the enforcement official estimates will be reasonably required to correct the violation. The citation shall state the penalties which may be ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:7 imposed if the violation is not corrected within the time period set forth in the first citation and shall also state the penalties which may be imposed if any additional citation must be issued for the same violation. The citation shall also state that all additional penalties are cumulative. (Code 1982, § 2-706; Ord. No. 08-06g, 8-14-08) Sec. 50-43. Same--Service of. A citation may be served upon the violator by giving the citation to the violator in hand, by leaving it with a person of suitable age and discretion at the residence or place of business of the violator or mailed by certified mail, return receipt requested, to his last known address. If the return receipt is not returned, the citation shall be conclusively presumed to have been served if it is also sent by regular mail postage prepaid, which has not been returned as undeliverable by the postal service. (Code 1982, § 2-708) Sec. 50-44. Time limits for corrective action. The time period specified in a citation within which a violation must be corrected shall be reasonable in consideration of: The threat posed by such violation to the health, safety and welfare of the public; The nature of the work required to correct the violation; and Any notice period given to the violator in a previous citation for the same violation or pursuant to section 50-39. (Code 1982, § 2-707) Sec. 50-45. Penalty. The civil penalty set in accordance with the city's policy manual as approved by the city council shall be imposed for the issuance of citations. The civil penalties imposed are cumulative. (Code 1982, § 2-709; Ord. No. 08-06g, 8-14-08) Sec. 50-46. Further violations. If the violation has not been corrected within the time specified in the first citation, the enforcement official may issue a second citation. The second citation shall contain the same information set forth in the first citation regarding the nature of the violation but may do so by reference to the first citation. It shall also state that, in addition to the civil penalty imposed for the first citation, as set in accordance with the city's policy manual as approved by the city council, a civil penalty has been imposed for the second citation as set in accordance with the city's policy manual as approved by the city council. The second citation shall also state that the continued failure to correct the violation may result in the issuance of further citations and shall indicate the penalties provided for the issuance of subsequent citations. The time limits specified for correcting the violation may be the same as that allowed in the first citation or may be altered if there has been a change in circumstances. The same procedure shall be followed with regard to ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:8 the issuance of subsequent citations. (Code 1982, § 2-710; Ord. No. 08-06g, 8-14-08) Sec. 50-47. Penalty for nonpayment of penalty; collection proceedings. All civil penalties imposed by citation shall be due within five days after the date by which the violation was ordered to be corrected. All civil penalties not paid when due shall bear interest at the rate of 18 percent per annum. The failure to pay when due any civil penalty imposed for violation of any of the laws, ordinances or rules set forth in 30-A M.R.S.A. § 4452(5), as amended, shall itself constitute a violation of such law, ordinance or rule for which the violator shall be liable for the penalties provided for in 30-A M.R.S.A. § 4452(3). The enforcement official or city attorney may initiate appropriate proceedings to collect any civil penalty which is not timely paid together with all interest thereon. Such legal action may include proceedings pursuant to 30-A M.R.S.A. § 4452. (Code 1982, § 2-711) Sec. 50-48. Repeat violations. If a violator has been previously served with a notice of violation with regard to a specific violation, he shall not be entitled to receive any further notice of the same violation if it is repeated. If the enforcement official determines that a violator has repeated the same violation, he may proceed in accordance with section 50-43 without further notice. (Code 1982, § 2-712) Sec. 50-49. Appeals. Appeals from a determination by the enforcement official that a violation of the Code has been committed may be taken to the board of appeals in accordance with the specific provisions of the particular ordinance alleged to have been violated. (Code 1982, § 2-713) Sec. 50-50. Effect of article on other ordinances. This article does not supersede or repeal any other provision of the Code, nor preclude the initiation of any other legal proceeding which may be provided by applicable state or federal law. (Code 1982, § 2-714) Sec. 50-51. Severability of provisions. If any provision of this article is declared invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to that provision of this article directly involved in the controversy which gave rise to the judgement and shall not affect or impair the validity of any other provision of this article. (Code 1982, § 2-715) ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:9 Secs. 50-52--50-70. Reserved. ARTICLE III. MINORS DIVISION 1. GENERALLY Sec. 50-71. Employment of underaged persons in alcoholic beverage establishments. No licensee for the sale of liquor to be consumed on licensed premises may employ any person under the age of 17 years in the serving or selling of liquor on the premises where liquor is sold. The licensee may employ a person who is 17 years of age but less than 21 years of age in the serving or selling of liquor only in the presence of an employee who is at least 21 years of age and is in a supervisory capacity or who was at least 18 years of age prior to January 1, 1994 and was employed in a supervisory capacity by the employer before that date. If upon complaint and investigation by the police department, the chief of police reasonably believes that any provision of subsection of this section has been or is being violated, or upon conviction for any violation of subsection the city council may, upon recommendation of the chief of police, revoke its approval of such special permit for dancing or entertainment, and direct the city clerk to communicate such fact to the state liquor commission, with recommendation that such special license or permit, issued by it, be revoked; provided, however, that the revocation of any license as above set forth, or of its approval by the city council, shall not prevent any criminal prosecution under section 1-8. (Code 1982, § 19-7) State law references: Similar provisions, 28-A M.R.S.A. § 704(1). Secs. 50-72--50-80. Reserved. DIVISION 2. CURFEW* *Editor's note: Ord. No. 96-12, effective Oct. 31, 1996, amended this division in its entirety, in effect repealing former 50-81--50-84 and enacting similar new provisions as herein set out. Formerly, such sections derived from 19-51--19-54 of the city's 1982 Code. Sec. 50-81. Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Curfew hours means 10:00 p.m. on any Sunday, Monday, Tuesday, Wednesday, or Thursday until 5:00 a.m. of the following day, and 12:01 a.m. on any Saturday or Sunday until 5:00 a.m. of the following day. Emergency means an unforeseen combination of circumstances or the resulting state that calls for immediate action. The term includes, but is not limited to, a fire, a natural disaster, or ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:10 automobile accident, or any situation requiring immediate action to prevent serious bodily injury or loss of life. Establishment means any privately owned place of business operated for a profit to which the public is invited, including, but not limited to any place of amusement or entertainment. Guardian means a person who, under court order, is the guardian of the person of a minor, or a public or private agency with whom a minor has been placed by a court. Minor means any person under 18 years of age. Operator means any individual, firm, association, partnership, or corporation operating, managing, or conducting any establishment. The term includes the members or partners of an association or partnership and the officers of a corporation. Parent means a person who is a natural parent, adoptive parent, or step-parent of another person, or at least 18 years of age and authorized by a parent or guardian to have the care and custody of a minor. Public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops. Remain means to linger or stay, or fail to leave premises when requested to do so by a police officer or the owner, operator, or other person in control of the premises. Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. (Ord. No. 96-12, 10-31-96) Cross references: Definitions and rules of construction, § 1-2. Sec. 50-82. Offenses. A minor commits an offense if he remains in any public place or on the premises of any establishment within the city during curfew hours. A parent or guardian of a minor commits an offense if he knowingly permits, or by insufficient control allows, the minor to remain in any public place or on the premises of any establishment within the city during curfew hours. The owner, operator or any employee of an establishment commits an offense if he knowingly allows a minor to remain upon the premises of the establishment during curfew hours. (Ord. No. 96-12, 10-31-96) Sec. 50-83. Defenses. It is a defense to prosecution under subsection 50-82(b) that the minor was: Accompanied by the minor's parent or guardian; On an errand at the direction of the minor's parent or guardian, without any detour ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:11 or stop; In a motor vehicle involved in interstate travel; Engaged in an employment activity, or going to or returning home from an employment activity, without any detour or stop; Involved in an emergency; On the sidewalk abutting the minor's residence or abutting the residence of a next- door neighbor if the neighbor did not complain to the police department about the minor's presence; Either; attending an official school, religious, or other recreational activity supervised by adults and sponsored by the city, a civic organization, or another similar entity that takes responsibility for the minor; or (ii) within 45 minutes after the termination of an official school, religious, or other recreational activity supervised by adults and sponsored by the city, a civic organization, or another similar entity that takes responsibility for the minor, going to or returning home from such activity; Exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech and the right of assembly; Exercising rights protected under Article I, Section 2, 3, 4 or 5 of the Maine Constitution; or (10) Married or had been married or had disabilities of minority removed in accordance with 15 M.R.S.A. § 3306A. It is a defense to prosecution under subsection 50-82(c) that the owner, operator, or employee of an establishment notified the police department that a minor was present on the premises of the establishment during curfew hours and refused to leave. (Ord. No. 96-12, 10-31-96) Sec. 50-84. Enforcement. Before taking any enforcement action under this section, a police officer shall ask the apparent offender's age and reason for being in the public place. The officer shall not issue a citation or make an arrest under this section unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances, no defense in subsection 50-83(a) is present. (Ord. No. 96-12, 10-31-96) Sec. 50-85. Penalties. A person who violates a provision of this division is guilty of a separate offense for each day or part of a day during which the violation is committed, continued or permitted. Each offense, upon conviction, is punishable by a civil penalty set in accordance with the city's policy manual as approved by the city council. (Ord. No. 96-12, 10-31-96; Ord. No. 08-06g, 8-14-08) ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:12 Sec. 50-86. Severability. The terms and provisions of this division are severable and are governed by chapter 1 of the Lewiston Code of Ordinances, as amended. (Ord. No. 96-12, 10-31-96) Sec. 50-87. Effective date. This division shall take effect in accordance with the provisions of subsection 2.11(c) of the Charter of the City of Lewiston. (Ord. No. 96-12, 10-31-96) Secs. 50-88--50-105. Reserved. ARTICLE IV. WEAPONS AND EXPLOSIVES* *Cross references: Fire prevention and protection, ch. 38. State law references: Authority to regulate the discharge of firearms, 25 M.R.S.A. § 2011(3). Sec. 50-106. Permit to carry concealed weapons. The chief of police is designated as the issuing authority for permits issued under 25 M.R.S.A. § 252. (Ord. No. 92-23, § 30, 10-15-92) Sec. 50-107. Discharging firearms. Purpose. The purpose of this section is to regulate the discharge of firearms within the city in order to promote and enhance the safety and welfare of its inhabitants. This section is intended to protect the rights of landowners and the interests of persons who use firearms in work and recreation while meeting these objectives. Zones created. For the purposes of this section, the city is divided into two zones denominated as zone 1 and zone 2. The boundaries of the zones are as follows: Zone 1. Zone 1 includes the area between the corporate boundaries of the City of Lewiston and lying southeasterly, easterly and northeasterly of a line delineated by the centerline of the Maine Turnpike from the point where the turnpike crosses the Androscoggin River to the point where Grove Street crosses the turnpike; then northwesterly on Grove Street to the point where the Central Maine Power Company double transmission lines cross Grove Street; then by the centerline of the right-of-way of the double transmission lines northerly and then northwesterly to the point where they cross the Androscoggin River. Zone 2. Zone 2 is that area within the corporate bounds of the City of Lewiston and not included in zone 1. Zone 1 discharge restrictions. In zone 1, no person shall discharge a firearm unless that ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:13 person is in possession of the written permission of the owner of the land on which such discharge occurs. The form of such written permission shall contain the following information: Name of landowner; Name of permittee; General description of size and location of land; and Dates and times for which such permission is valid. Zone 2 discharge restrictions. In zone 2, no person shall discharge any firearm. Exceptions. No provision of this section shall be construed to limit the authority to discharge a firearm by a person who is: A law enforcement officer, or a government official, acting within the scope of his official duties. Acting in lawful defense of person. Within the physical confines of a duly authorized firing range, rifle range, pistol range, target range or shooting gallery. A member of the National Guard, veterans' organizations and similar organizations in connection with public ceremonials. Discharging a firearm for signalling purposes. Discharging a firearm with blank cartridges for theatrical purposes or for signal purposes in athletic contests or sport events. A property owner, or his authorized agent, engaged in commercial agriculture acting in lawful defense of his own crops from damage or destruction by wild animals. "Firearm" defined. A "firearm" includes any instrument used in the propulsion of pellet, shot, slug, or bullet by the action of gunpowder, compressed air or gas exploded or released within it. Penalties for violation. Violations of this section shall be punishable by a penalty set in accordance with the city's policy manual as approved by the city council. Prima facie evidence of violation. It shall be prima facie evidence of a violation of this section if a person carries a firearm on his person, the discharge of which is prohibited in the zone in which the person is located, unless that firearm is unloaded and rendered incapable of firing without further assembly or is unloaded and enclosed in a case. Nothing in this subsection shall be construed to limit the authority to carry a concealed firearm by a person licensed to do so. (Ord. No. 92-23, § 30, 10-15-92; Ord. No. 95-13, 10-19-95; Ord. No. 08-06g, 8-14-08) Sec. 50-108. Blasting restricted; permit. No person shall blast any rock or other substance at any time within the city limits ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:14 without first obtaining a written permit from the fire prevention bureau, which permit shall specify the terms and conditions on which it is granted. Such permit shall be granted if the blasting will be conducted in accordance with all laws and ordinances. The remedy of persons injured by a blast of rocks shall not be affected by this section or any permit granted thereunder, nor shall it be construed as applying to the superintendent of streets in the discharge of his official duties. As provided by 17 M.R.S.A. § 2791, persons engaged in blasting limerock or other rocks shall, before each explosion, give reasonable notice thereof, so that all persons or teams approaching shall have time to retire to a safe distance from the place of such explosion; and no such explosion shall be made after sunset. Whoever violates the provisions of this section shall be punished as provided by 17 M.R.S.A. § 2791. (Code 1982, § 30-3) Sec. 50-109. Storage limit on gunpowder unless licensed. No person shall keep or have in any shop, store, dwelling house or tenement in the city, at any one time, a larger quantity of gunpowder than one pound, unless he is licensed by the bureau of fire prevention to keep and sell gunpowder, or except as provided in this article. (Code 1982, § 30-4) State law references: State regulation of the keeping, dispensing or transporting of gunpowder, 25 M.R.S.A. § 2441. Sec. 50-110. License to sell gunpowder; appeal. It shall not be lawful for any person to sell at retail or wholesale gunpowder in any form (bulk or cartridges, etc.) without having first obtained from the bureau of fire prevention a license to sell gunpowder. Every such license shall be in force for one year from the date thereof, unless revoked by the bureau. Any person aggrieved by any decision of the bureau shall have the right of appeal to the city council, such appeal to be in writing and filed with the city clerk. (Code 1982, § 30-5) State law references: Municipal authority to regulate the keeping, dispensing or transporting of explosives, 25 M.R.S.A. § 2441. Sec. 50-111. Exception. This article shall not apply to any person on military duty in the public service of the United States or of this state. (Code 1982, § 30-6) Secs. 50-112--50-160. Reserved. ARTICLE V. OBSCENITY Sec. 50-161. Definitions. ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:15 As used in this article, the following words shall have the following meanings: Material means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three-dimensional obscene device. Obscene means material or a performance that: The average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex; Depicts or describes: a. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy and sexual bestiality; or b. Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and Taken as a whole, lacks serious literary, artistic, political or scientific value. Obscene device means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs. Patently offensive means so offensive on its face as to be intolerable to the average person, applying contemporary community standards. Performance means a play, motion picture, dance, or other exhibition performed before an audience. Promote means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same. Prurient interest in sex means a shameful or morbid interest in sex. Wholesale promote means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale. (Ord. No. 03-06, 7-3-03) Sec. 50-162. Wholesale promotion of obscene material or devices. A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device. A person commits an offense if, knowing its content and character, he: Promotes or possesses with intent to promote any obscene material or obscene ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:16 device; or Produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity. A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character. A person who possesses six or more obscene devices or six or more obscene articles, whether such devices or articles are similar or identical, is presumed to possess them with intent to promote the same. This section does not apply to a person who possesses or distributes obscene material or obscene devices or participates in conduct otherwise proscribed by this section when the possession, participation, or conduct occurs in the course of law enforcement activities. (Ord. No. 03-06, 7-3-03) Sec. 50-163. Validity. If any of the depictions or descriptions of sexual conduct described in this article are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this article as to other patently offensive sexual conduct included herein. (Ord. No. 03-06, 7-3-03) Sec. 50-164. Penalty. The violation of any provision of this article shall be punished by a fine set in accordance with the city's policy manual as approved by the city council. Each act of violation and every day upon which any such violation shall occur shall constitute a separate offense. In addition to such penalty, the city may enjoin or abate any violation of this article by appropriate action. In addition to such penalty, if the court finds for the city, the city shall recover its costs of suit including reasonable experts' fees, reasonable attorneys' fees and reasonable investigative costs. (Ord. No. 03-06, 7-3-03; Ord. No. 08-06g, 8-14-08) Sec. 50-165. Application of violations to liquor licenses and special amusement permits. Any violation of this article may result in the nonrenewal by the city council of the liquor license held by the violator at the time the council first considers the liquor license following adjudication under this article. Additionally, any violation of this article may result in suspension or revocation of any special amusement permit pursuant to the provisions of 28A MRSA § 1054(7). (Ord. No. 03-06, 7-3-03) Secs. 50-166--50-180. Reserved. ARTICLE VI. OPERATION OF NOISE-CREATING DEVICES UPON PUBLIC RIGHTS-OF-WAY* ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:17 *Editor's note: Ord. No. 04-04, effective April 1, 2004, provided for the inclusion of art. V, 50-130--50-135. Inasmuch as Ord. No. 03-06, effective July 3, 2003, provided for the inclusion of art. V, currently codified as 50- 161--50-165, the provisions of Ord. No. 04-04 have been included as art. VI, 50-181--50-185 at the discretion of the editor. Sec. 50-181. Purpose. The City of Lewiston City Council finds that excessive noise on public ways may: Cause distraction to other drivers which impairs the safe operation of motor vehicles; Unreasonably disturb the quiet and normal functioning of the city's residential neighborhoods; Threaten and/or intimidate pedestrians; and Project a negative image of the city, all to the detriment of the health, welfare and safety of Lewiston's citizens and guests. Accordingly, it is the policy of the City of Lewiston to prohibit unnecessary, excessive, annoying or distracting noise on any public right-of-way within the City of Lewiston Maine. (Ord. No. 04-04, 4-1-04) Sec. 50-182. Definitions. For the purposes of this article, the following words and phrases shall have the following meanings: City means the City of Lewiston, Maine. Noise-creating device means any electrical, mechanical or chemical device or instrument, or combination thereof that creates noise during its operation. means an unenclosed motor vehicle, having a saddle/seat for the use of the operator, with two or three wheels in contact with the ground, including, but not limited to, motorscooters and minibikes. Operation means actual control by a person. Public right-of-way means any street, roadway, alley, sidewalk or any other area deeded or dedicated for public travel or transportation purposes. Straight pipe exhaust system means any muffler that does not contain baffles, including, but not limited to, glass packs, steel packs, straight pipes, modified baffle systems, and drag pipes. Internal combustion engine vehicle means a vehicle that uses a mechanical engine of any type that requires fuel combustion to propel the vehicle. Vehicle. For the purpose of this section, a vehicle will include, and is not limited to, an automobile, a truck, a a snowmobile, an ATV, a go-cart, a ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:18 minibike, an engine-propelled skateboard, and any other propelled unit that falls into this category. (Ord. No. 04-04, 4-1-04) Sec. 50-183. Creation of certain noises upon a public right-of-way prohibited. No person, while occupying any public right-of-way in the city, shall operate any noise- creating device in such a manner that the level of noise causes the public's attention to be drawn to the source of the noise, subject to the exceptions hereafter provided. The prohibition of this section shall include, but not be limited to, the following activity or conduct: Discharging fireworks or any exploding device; Firing a starter pistol or firearm; Sounding a bell or whistle, alarm or horn for so extended a period of time as to cause annoyance to others; Rapid throttle advance, rapid acceleration and/or revving of an internal combustion engine resulting in increased noise from the engine and exhaust system, to include, but not limited to the practice of "blipping"; and Operation of an unmuffled motor vehicle or vehicle, including with a straight pipe exhaust system, an exhaust system with a cutout, bypass or similar device or an exhaust system that does not meet the requirements of Maine law, including, but not limited to 29-A M.R.S.A. subsection 19. (Ord. No. 04-04, 4-1-04) Sec. 50-184. Exceptions. The provisions of this section shall not apply to the following activity or conduct: Expression or communication protected by the United States Constitution, including the First Amendment, or the Maine Constitution. Any activity or conduct the regulation of which has been preempted by Maine Statute. Any noise created by a governmental entity in the performance of an official duty. Any noise for which a permit has been issued by an authority having jurisdiction to issue the permit, or any noise that is allowable under other sections of the City Code. The sounding of any signaling device permitted by law. Properly licensed common carriers and service vehicles in the performance of their customary duties. Any vehicle equipped with a factory installed, original and untampered with exhaust system, not being operated in such a fashion as to accentuate the sound of the exhaust. ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:19 (Ord. No. 04-04, 4-1-04) Sec. 50-185. Penalty. Violations of this article constitute civil violations, punishable in accordance with the city's policy manual as approved by the city council. (Ord. No. 04-04, 4-1-04; Ord. No. 08-06g, 8-14-08) Secs. 50-186--50-199. Reserved. ARTICLE VII. GRAFFITI VIOLATIONS Sec. 50-200. Purpose. The city council has determined that graffiti creates a visual blight and can adversely impact property owners financially as well as their enjoyment and value of property. This article is intended to deter graffiti and to establish penalties for graffiti. (Ord. No. 07-08, 10-04-07) Sec. 50-201. Definitions. Graffiti means any inscription, word, figure, design, painting, writing, drawing or carving that is marked, etched, scratched, drawn, painted or otherwise applied to property without the prior authorization of the owner of the property regardless of the content or nature of the material used. 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. Graffiti removal means the removal or attempted removal or painting over of graffiti by the owner of the affected property or by another person with the consent of the owner or owner's designee or by court order. Immediately adjacent means near enough to the property to apply graffiti. Owner means the person listed on the assessor's records for the City of Lewiston as the owner of property. Property means any real or personal property, including, but not limited to, any portion of any premises, structure, house, building, fence or vehicle. (Ord. No. 07-08, 10-04-07) Sec. 50-202. Prohibited acts. The following acts are prohibited: Applying graffiti to any private or public property without the permission of the owner; ---PAGE BREAK--- OFFENSES AND MISCELLANOUS PROVISIONS Lewiston Code Chapter 50 CH 50:20 Soliciting or commanding another person to apply graffiti to any private or public property without the permission of the owner; or Aiding or abetting or agreeing to aid or abet another person in planning to apply or applying graffiti to any private or public property without the permission of the owner. (Ord. No. 07-08, 10-04-07) Sec. 50-203. Prohibited possession of graffiti implements. Possession of graffiti implements in the following situations and under reasonable suspicion is deemed to be evidence of an intent or attempt to commit a prohibited act and is prohibited: By minors on or near school facilities. No person under the age of 18 years may possess any graffiti implement while on or within 50 feet of any school property. Notwithstanding this provision, a person under 18 may possess a broad-tipped marker if traveling to or from a school in which the minor is participating in a class or activity that requires the possession of a broad-tipped marker. The burden of proof shall be on the minor to demonstrate that possession was required for a school class or activity. By any person on or immediately adjacent to private property without the permission of the owner of the property. By any person in any public facility, park, playground, swimming pool, recreational facility, or other public building, structure, premises or vehicle without the city's permission, or within 50 feet of any underpass, bridge abutment, or similar infrastructure without permission of the owner. (Ord. No. 07-08, 10-04-07) Secs. 50-204--50-210. Reserved. Sec. 50-211. Penalties. Any person violating this article shall be subject to a fine set in accordance with the city's policy manual as approved by the city council. Each day any violation shall continue shall constitute a separate violation. In addition to the fine stated in subsection any person found to have committed a violation of section 50-202 shall be subject to restitution for all costs of graffiti removal, and/or to perform community service to the City of Lewiston. (Ord. No. 07-08, 10-04-07; Ord. No. 08-06g, 8-14-08)