HomeMy WebLinkAboutORD893ORDINANCE NO.893
AN ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,AMENDING THE APACHE JUNCTION CITY CODE BY ADDING
ARTICLE 10-2,BAD CHECKS,AND SECTIONS 10-2-1 THROUGH 10-2-4;
REPEALING ANY CONFLICTING PROVISIONS;AND PROVIDING FOR
SEVERABILITY.
NOW,THEREFORE,BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION,ARIZONA,AS FOLLOWS:
SECTION I IN GENERAL
That the Apache Junction City Code be amended by adding Article 10-2,Bad Checks,
and Sections 10-2-1 through 10-2-4 to read as follows:
ARTICLE 10-2 BAD CHECKS
Section 10-2-1 Issuing of Bad Checks;Violation,Classification
A.A person commits issuing a bad check if he issues or passes a check
knowing he does not have sufficient funds in or on deposit with the
bank or other drawee for the payment in full of the check as well as
all other checks outstanding at the time of issuance.
B.Any of the following is a defense to prosecution under the section:
1.The payee or holder knows or has been expressly notified
before the drawing of the check or has reason to believe that
the drawer did not have on deposit or to his credit with the
drawee sufficient funds to insure payment on its presentation.
2.The check is postdated and sufficient funds are on deposit
with the drawee on such later date for the payment in full of
the check.
3.Insufficiency of funds results from an adjustment to the
person's account by the credit institution without notice to
the person.
Section 10-2-2 Presumptions Relating to Issuing a Bad Check;
Proof of Presentation;Nonpayment;Protest;
Notice
A.For purposes of this chapter,the issuer's knowledge of insufficient
funds may be presumed if either:
1.The issuer had no account with the bank or other drawee at the
time he issued the check.
ORDINANCE NO.893
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2.Payment was refused by the bank or other drawee for lack of
funds upon presentation within thirty (30)days after issue
and the issuer failed to pay the holder the full amount due on
the check,together with reasonable costs,within twelve (12)
days after receiving notice of that refusal.
B.Nothing in this section prevents the prosecution from establishing
the requisite invent by direct evidence.
C.Notice may be actual notice or notice in writing,sent by registered
or certified mail return -receipt requested and addressed to the
issuer at his address shown on any of the following:
1.The check.
2.The records of the bank or other drawee.
3.The records of the person to whom the check is issued or
passed.
D.The form of notice shall be substantially as follows:
NOTICE OF DISHONORED CHECK
Date:
Name of ISSUER:
Street Address:
City and State:
You are,according to law,hereby notified that a check or
instrument numbered ,dated ,19_,drawn on
(Bank of other Drawee)
in the amount of $and payable to
has been dishonored.Pursuant to Arizona law,you have twelve days
from receipt of this notice to pay or tender to
(Holder)
the full amount of the check or instrument,together with all
reasonable costs and protest fees of $,the total
amount due being $.Unless this amount is paid in
full,within the specified time above,the holder of the check or
instrument may turn over the dishonored check or instrument and all
other available information relating to this incident to the office
of the City Attorney for criminal prosecution.
E.If written notice is given in accordance with this section,i t is
presumed that the notice was received no later than five (5)days
after i t was sent.
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Section 10-2-3 Jurisdiction;Restitution;Fees;Diversion
Program
A.Any violation of Section 10-2-2 may be prosecuted by the office of
the City Attorney.
B.A person charged with an offense under this chapter may make
restitution for the bad checks.Restitution may be made through the
office of the City Attorney i f collection and processing were
initiated through that office.Restitution shall include at a
minimum the face amount of the check.The fact that restitution to
the party injured is made and that any costs of filing with the City
Attorney are paid is a mitigating factor in any imposition of
punishment for any violation of this chapter.On sentencing,the
Court may require any persons convicted under this chapter to make
restitution in an amount not to exceed twice the amount of the
dishonored check or $50.00,whichever is greater,together with all
applicable costs and fees.This is in addition to any other
punishment imposed.
C.The City Attorney may establish a program wherein a notice of
dishonored check is issued and an opportunity is presented to the
person who issued a check drawn on an account with insufficient
funds,or where the issuer had no account with the bank or other
drawer at time of issuance to pay to the holder in full the amount
due on the check,together with reasonable costs and fees.If the
issuer of the check pays the full amount due on the check,together
with reasonable costs and fees as charged by the City Attorney
within twelve (12)days from receiving notice,the City Attorney may
elect to not prosecute the violation of Section 10-2-2.
D.The City Attorney may collect a fee i f his office collects and
processes a check,either through the diversion program as
heretofore provided,or otherwise,if the check is issued or passed
in a manner which makes the issuing or passing a misdemeanor offense
under A.R.S.§§13-1801 or 13-1807,or under Section 10-2-2 of this
chapter.
E.The City Attorney may collect a fee from any person who is'a party
to an offense described in this section.
F.The amount of the fee shall not exceed:
1.Twenty-five dollars ($25.00)if the face amount of the check
does not exceed $100.00.
2.Fifty dollars ($50.00)i f the face amount of the check is
greater than $100.00,but does not exceed $300.00.
3.Seventy-five dollars ($75.00)if the face amount of the check
is greater than $300.00.
ORDINANCE NO.893
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Section 10-2-4 Deferred Prosecution of Bad Check Cases
A.The City Attorney may create within his office a deferred
prosecution program for bad check cases.
B.The City Attorney may refer a bad check case to the bad check
deferred prosecution program.This chapter does not limit the power
of the office of the City Attorney to prosecute bad check
complaints.
C.Upon receipt of a bad check case,the City Attorney shall determine
i f the case is one which is appropriate to be referred to the bad
check prosecution program.To determine whether to refer a check to
the bad check deferred prosecution program,the City Attorney shall
consider the following guidelines:
1.The amount of the bad check.
2.If there is a prior criminal record of the defendant.
3.The number of bad check complaints by the defendant previously
received by the City Attorney.
4.Whether or not there are other bad check complaints currently
pending against the defendant.
5.The strength of evidence of intent to defraud the victim.
D.On referral of a complaint to the bad check deferred prosecution
program,a notice of the complaint shall be forwarded by mail to the
defendant.The notice shall contain all of the following:
1.The date and amount of the check.
2.The name of the payee.
3.The date before which the defendant must contact the office of
the City Attorney concerning the complaint.
4.A statement of the penalty for issuance of a bad check.
E.The City Attorney may enter into a written agreement with the
defendant to defer prosecution on the bad check for a period to be
determined by the City Attorney,not to exceed six (6)months
pending on all of the following:
1.Completion of the bad check deferred prosecution school
program conducted by the office of the City Attorney,Apache
Junction Police Department,or a private entity under contract
with the City Attorney.
ORDINANCE NO.893
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2.Full restitution being made to the victim of the bad check,as
specified in this chapter.
3.Full payment of fees due pursuant to this chapter.
SECTION I I REPEALING OF CONFLICTING ORDINANCES
All ordinances and parts of ordinances and/or provisions of the Apache Junction
City Code which are in conflict with the provisions of this ordinance are hereby
repealed.
SECTION III PROVIDING FOR SEVERABILITY
I f any section,sub -section,sentence,phrase,clause or portion of this
ordinance or any part of the Code adopted herein by reference is for any reason
held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction,such decision shall not affect the validity of the remaining
portion thereof.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,
ARIZONA,THIS 19TH DAY OF APRIL ,1994.
SIGNED AND ATTESTED TO THIS2OTH DAY OF APRIL ,1994.
JEANPtRKINS
Ma v61
ATTEST:
KATHLEEN CONNELLY
City Clerk
APFp • :11/S T/9 -z
•(/'
GLENN J.G1MBUT
City Attorney'
ORDINANCE NO.893
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