PENDING ORDINANCES
ORDINANCE NO. 3640
COUNCIL BILL NO. 19-1013
AN ORDINANCE AMENDING SECTIONS 5.68.040, 5.68.050, 5.68.060, 5.68.100, 5.68.110, AND 5.68.130 OF THE MUNICIPAL CODE OF THE CITY OF COEUR D’ALENE, KOOTENAI COUNTY, IDAHO; AMENDING THE TITLE OF SECTION 5.68.100; ADDING A NEW SECTION, 5.68.103, TO THE COEUR D’ALENE MUNICIPAL CODE; PROVIDING FOR THE REPEAL OF CONFLICTING ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE PUBLICATION OF A SUMMARY; AND PROVIDING FOR AN EFFECTIVE DATE.
 
WHEREAS, upon recommendation of the Coeur d’Alene Childcare Commission, it is deemed by the Mayor and City Council to be in the best interests of the City of Coeur d’Alene that said Chapter be adopted;
NOW, THEREFORE,
BE IT ORDAINED by the Mayor and City Council of the City of Coeur d’Alene:
 
SECTION 1.That section 5.68.040(A) of the Coeur d’Alene Municipal Code be amended as follows:
Individual: The applicant's age, legal name, telephone number, post office address, and residence; e-mail address if available; the applicant's places of residence for the past ten (10) years immediately preceding the time of such application; whether or not the applicant has been convicted of any crime involving children or a crime involving moral turpitude. In order to determine suitability of prospective applicants for licensing with the city of Coeur d'Alene, the city of Coeur d'Alene shall require each specified applicant to provide information and fingerprints necessary to obtain criminal history information from the city of Coeur d'Alene police, and/or any state sex offender lists, the central child protection registry, Idaho state police, and the federal bureau of investigation. Pursuant to section 67-3008, Idaho Code and congressional enactment public law 92-544, the city of Coeur d'Alene shall submit a set of fingerprints obtained from the applicant and the required fees to the Idaho state police, bureau of criminal identification, for a criminal records check of state and national databases. The submission of fingerprints and information required by this section shall be on forms prescribed by the Idaho state police. The city of Coeur d'Alene is authorized to receive criminal history information from the Idaho state police and from the federal bureau of investigation for the purpose of evaluating the fitness of applicants for licensing. As required by state and federal law, further dissemination or other use of the criminal history information is prohibited. As required by section 5.60.020 of this title, fees required for the criminal history check shall be tendered at such time as the application is made. As Idaho is a community property state, applicant and spouse must both complete the criminal history background check.
SECTION 2.That section 5.68.040(B) of the Coeur d’Alene Municipal Code be amended as follows:
Corporation: In case the applicant for such a license is a corporation, such corporation must be authorized to do business in this state. The application shall be made by the manager of the premises described and such application shall contain all of the statements and furnish all of the facts and recommendations as to such manager as are required in the case of an individual in subsection A of this section. Such license to a corporation shall be revoked upon a change of such manager and a new license shall be required by the city clerk before any new manager shall take charge of such premises for such corporation; provided, however, the city clerk, after the background investigation, may issue a temporary license for a period of not to exceed sixty (60) days during which time the corporation must make a new application to the city council naming therein the new manager of the licensed premises.
SECTION 3.That section 5.68.050(A) of the Coeur d’Alene Municipal Code be amended as follows:
Investigation: Before any license shall be issued under this chapter, an investigation of the applicant, all other persons for which whom a criminal history check and a central child protection registry check is required under Idaho Code section 39-1105, and any other person twelve (12) years of age or older that resides at the childcare facility or is regularly present on the premises, and inspection of the premises shall be made by the fire department, police department and other city departments,and by the district health department, and other agencies as may be deemed necessary, to determine that the applicant and the premises fully comply with Idaho Code sections 39-1105, 39-1109, 39-1110, 39-1118 and 39-1119.
SECTION 4.That section 5.68.050(B) of the Coeur d’Alene Municipal Code be amended as follows:
B.   Criminal History Check: In order to determine the suitability of prospective applicants for a childcare facility license or employment by such facility, the city of Coeur d'Alene cCity cClerk and/or the Coeur d'Alene city pPolice dDepartment shall require conduct a criminal history check of all people twelve (12) years of age or older residing, working, or participating at the facility, except supervised volunteers, regardless of time of residence in the county, and any other persons required under Idaho Code section 39-1105 to provide information and fingerprints necessary as provided hereafter.  The City shall also request the Department of Health and Welfare to conduct a criminal history check and a central child protection registry check, and to report the results to the City.
1.   Upon receipt of a first-time application for a license,to the City shall obtain criminal history information from the Idaho state police and the federal bureau of investigation. Pursuant to section 67-3008, Idaho Code and congressional enactment public law 92-544, the city of Coeur d'Alene shall submit a set of fingerprints obtained from the applicant and the required fees to the Idaho state police, bureau of criminal identification, for a criminal records check of state and national databases. The submission of fingerprints and information required by this section shall be on forms prescribed by the Idaho state police. The city of Coeur d'Alene is authorized to receive criminal history information from the Idaho state police and from the federal bureau of investigation for the purpose of evaluating the fitness of applicants for licensing. As required by state and federal law, further dissemination or other use of the criminal history information is prohibited. The cost of the criminal history check shall be the amount charged for such background check by the state of Idaho and include any cost required by the federal bureau of investigation and any reasonable administrative fee established by resolution of the city of Coeur d'Alene.
2.   For any license renewal, a City background check shall be performed; PROVIDED, every five years, both a City and a State background check shall be performed.  Grounds for denial of a license renewal shall be the same as the grounds for denial of an initial license.
3.   No license shall be issued until such background check has been completed and its subject has been deemed qualified. However, upon the receipt of an application for a childcare provider license, the cCity cClerk may issue a provisional license to an applicant for a provider license if the cCity cClerk determines that such person is in substantial compliance with the provisions of this cChapter. In determining whether substantial compliance with this cChapter exists, the cCity cClerk shall require completion of all criminal record clearances. A provisional license shall expire one hundred twenty (120) days from the date of issuance or at such earlier time as the cCity cClerk may designate for good cause. A childcare provider or any other person required to undergo a criminal history check have a license must be continually under the supervision of a licensed childcare provider until completion of all criminal record clearances and other required health clearancesa provider license is issued.
SECTION 5.That section 5.68.060 of the Coeur d’Alene Municipal Code be amended as follows:
No childcare license shall be issued:
A.   Where the individual operator, managing agent of a corporation, active partner(s), care provider, or any other person required to have a criminal history check and central child protection registry check under the provisions of this chapter or Idaho Code section 39-1105 has pleaded guilty to, been found guilty of, or received a withheld judgment for any offense involving neglect of or any physical injury to or other abuse of a child, felony domestic violence, aggravated assault, or aggravated battery, including the following offenses or a similar provision in another jurisdiction: attempted strangulation, Idaho Code section 18-923; injuring a child, Idaho Code section 18-1501; sexual abuse of a child under sixteen (16) years of age, Idaho Code section 18-1506; ritualized abuse of a child under eighteen (18) years of age, Idaho Code section 18-1506A; sexual exploitation of a child, Idaho Code section 18-1507 or 18-1507A; lewd conduct with a child under the age of sixteen (16) years, Idaho Code section 18-1508; enticing of children, Idaho Code section 18-1509 or 18-1509A; sale or barter of a child for adoption or other purposes, Idaho Code section 18-1511; murder, Idaho Code section 18-4001 or 18-4003; voluntary manslaughter, Idaho Code section 18-4006; poisoning, Idaho Code section 18-4014 or 18-5501; assault with intent to murder, Idaho Code section 18-4015; indecent exposure, Idaho Code section 18-4116; abuse, neglect, or exploitation of a vulnerable adult, Idaho Code section 18-1505; kidnapping, Idaho Code section 18-4501 through 18-4503; mayhem, Idaho Code section 18-5001; inducing individuals under eighteen (18) years of age into prostitution, Idaho Code section 18-5609; inducing persons under eighteen (18) years of age to patronize a prostitute, Idaho Code section 18-5611; rape, Idaho Code section 18-6101 or 18-6108; robbery, Idaho Code section 18-6501; incest, Idaho Code section 18-6602; crimes against nature, Idaho Code section 18-6605; forcible sexual penetration by use of a foreign object, Idaho Code section 18-6608; video voyeurism, Idaho Code section 18-6609; stalking in the first degree, Idaho Code section 18-7905; any felony punishable by death or life imprisonment; any crime involving a controlled substance except as provided in subsection B of this section, or a crime involving moral turpitude; or where a person is on felony supervised parole or probation.
B.   Any person who has pleaded guilty to, been found guilty of, or received a withheld judgment for any of the following offenses, or an offense which may be similarly defined in another jurisdiction, shall be denied a childcare license for a period of five (5) years from the date of the conviction:
1. Forgery of a financial transaction card, Idaho Code section 18-3123.
2. Fraudulent use of a financial transaction card or number, Idaho Code section 18-3124.
3. Forgery or counterfeiting, Idaho Code chapter 36, title 18.
4. Misappropriation of personal identifying information, Idaho Code section 18-3126.
5. Insurance fraud, Idaho Code section 41-293.
6. Damage to or destruction of insured property, Idaho Code section 41-294.
7. Public assistance fraud, Idaho Code section 56-227.
8. Provider fraud, Idaho Code section 56-227A.
   9. Attempt, Idaho Code section 18-306.
10. Conspiracy, Idaho Code section 18-1701.
11. Accessory after the fact, Idaho Code section 18-205.
12. Misdemeanor injury to a child, Idaho Code section 18-1501(2).
13. Possession of marijuana or marijuana paraphernalia for personal use.
C.   Where the individual operator, managing agent of a corporation, active partner(s), or any other person required to have a criminal history check under the provisions of this chapter or Idaho Code section 39-1105 have been found guilty of or received a withheld judgment for any offense involving misdemeanor domestic violence charge within the last five (5) years, or an amended charge from felony or misdemeanor domestic violence arrest within the last five (5) years.
D.   For any premises, unless the requirements of Idaho Code sections 39-1105, 39- 1109, and 39-1110 and pertinent provisions of the city zoning ordinances and this chapter, as far as can be determined, are being complied with.
E.   If any false statement is made in any part of said application or criminal history check request form, or in any renewal application or subsequent report.
F.   Within five (5) days following the denial of a license or renewal thereof, written notice of the reason(s) for such denial shall be given to the licensee by the City Clerk or designee. An applicant cannot request appeal if denied on basis of a disqualifying event disclosed in a required criminal history check. Such notice shall state that a person may appeal the decision to deny a license by providing written notice of the intent to appeal to the City Clerk, stating the ground(s) therefor, within ten (10) calendar days of the date of the notice of denial.  The appeal shall follow the procedures set forth in § 5.68.103.
G.   Stay On Denial of License Renewal: Upon receipt of a notice of appeal, the denial of a license renewal shall be stayed. The City Clerk shall notify the applicant or licensee of the time and place of the hearing on appeal. The Childcare Commission shall hear such appeal within thirty (30) calendar days after the date the notice of appeal was filed. The Commission will provide written notice to the applicant or licensee of its decision and the stay shall expire as of the date of the notice decision.
H.   Emergency Situations: Should an emergency exist and the chief of police or the fire chief certify that there is an immediate danger to the life or health of a child, there shall be no stay or, if a stay has commenced, it shall be lifted and the denial of a license renewal shall be in effect during the appeal.
SECTION 6.That the title of section 5.68.100 of the Coeur d’Alene Municipal Code be amended as follows:
LICENSE DENIAL AND REVOCATION; NOTICE; APPEAL TO COMMISSION; STAY:
SECTION 7.That section 5.68.100 of the Coeur d’Alene Municipal Code be amended as follows:
A.   Revocation: When it appears that any operator or licensee, any other person designated in Idaho Code section 39-1105, or any other person twelve (12) years of age or older that resides at the childcare facility has violated any provision of this chapter, any ordinance of the city with regard to the premises where the childcare facility is located, or any other ordinance of the city or statute of the state or of the United States involving controlled substances, physical or sexual abuse involving children, any offenses specified in section 5.68.060 of this chapter, or a crime of moral turpitude, the license shall be revoked.
B. Notice: Prior to the revocation of any license, or the denial of a license or renewal thereof, written notice of the reason(s) for such action shall be given to the applicant or licensee by the cCity cClerk or designee. Such notice shall state that a person wanting tomay appeal the decision to deny or revoke a license shall makeby providinga written applicationnotice of intent to appeal to the City Clerk, upon a form prescribed by the citystating the grounds therefor, within ten (10) calendar days of the date of the notice of denial or revocation.  The appeal shall follow the procedures set forth in § 5.68.103 of this Chapter.
C. Stay Of On Revocation Or Denial: Upon receipt of anapplication fornotice of appeal, a the revocation or denial of a license renewal shall be stayed. The cCity cClerk shall notify the applicant or licensee of the time and place of the hearing for the appeal. The cChildcare cCommission shall hear such appeal within thirty (30) calendar days after the date the application fornotice of appeal was filed. The cCommission will provide written notice to the applicant or licensee of its decision and the stay shall expire as of the date of the noticedecision.
D. Emergency Situations: Should an emergency exist and the chief of police or the fire chief certify that there is an immediate danger to the life or health of a child, there shall be no stay or, if a stay has commenced, it shall be lifted and the revocation or denial of a the license renewal shall be in effect during the appeal.
E.   Appeal Hearing: In hearing an appeal, the commission shall:
1.   Consider the evidence presented, giving such weight to any testimony or exhibits as it deems appropriate;
2.    Place the burden on the appellant to demonstrate by clear and convincing evidence that the decision to deny or revoke a license was contrary to the law or the facts;
3.    Conduct the hearing fairly and impartially with the goal of receiving all information pertinent to the issues before it in an orderly and courteous manner; and
4.    Render a decision based on the evidence and consistent with the purpose and intent of this chapter.
F.   Commission Actions On Appeal: On appeal, the commission may:
1.   Decide questions arising over the interpretation and enforcement of this chapter;
2.   Rule on evidentiary objections with the advice of legal counsel, if available; the Idaho rules of evidence shall be used for guidance, but shall not be applied so as to prevent the admission of all relevant evidence;
3.   Affirm, reverse, or affirm with conditions the decision to deny or revoke a license; and
4.   The commission may continue the hearing in order to allow a party to produce additional evidence.
G.   Deliberations And Decision:
1.   After the evidence has been presented, the commission shall deliberate and decide the appeal in open session.
2.   Any decision shall be by majority vote of the commission, with the chair voting only in the event of a tie.
3.   The reasons for the decision shall be stated on the record and included in the written notice of decision to be sent to the applicant or licensee.
SECTION 8.That a new section, 5.68.103, of the Coeur d’Alene Municipal Code be added as follows:
5.68.103:   APPEAL PROCEDURES:
A.   In hearing an appeal for denial of a license or license renewal, or revocation of a license, the Commission shall consider the evidence presented, giving such weight to any testimony or exhibits as it deems appropriate;
1.   Criteria that may be considered on appeals involving use or possession of marijuana and/or paraphernalia by a minor residing in a childcare facility include, but are not limited to, the following:
a.   Personal use or use with other persons, amount in weight of marijuana, amount in items of paraphernalia, if marijuana and paraphernalia is possessed, location of use or discovered such as at home, in car, on person, at school, away from day care facility, near day care facility, prior incidents not officially charged, prior documented incidents of frequenting, prior incidents involving alcohol, childcare facility operator ability to ensure safety of day care children, how items discovered and reported, what reasonable protections can be enacted to assure safety of the children.
2.   Place the burden on the appellant to demonstrate by clear and convincing evidence that the decision to deny or revoke a license was contrary to the law or the facts;
3.   Conduct the hearing fairly and impartially with the goal of receiving all information pertinent to the issues before it in an orderly and courteous manner; and
4.   Render a decision based on the evidence and consistent with the purpose and intent of this chapter.
B.   On appeal, the Commission may:
1.   Decide questions arising over the interpretation and enforcement of this chapter;
2.   Rule on evidentiary objections with the advice of legal counsel, if available; the Idaho rules of evidence shall be used for guidance, but shall not be applied so as to prevent the admission of all relevant evidence;
3.   Affirm, reverse, or affirm with conditions the decision to deny or revoke a license; and
4.   The Commission may continue the hearing for good cause shown in order to allow a party to produce additional evidence.
C.   Deliberations and Decision.
1.   After the evidence has been presented, the Commission shall deliberate and decide the appeal in open session.
2.   Any decision shall be by majority vote of the Commission, with the chair voting only in the event of a tie.
3.   The reasons for the decision shall be stated on the record and included in the written notice of decision to be sent to the applicant or licensee.
SECTION 9.That section 5.68.110 of the Coeur d’Alene Municipal Code be amended as follows:
No licensee, operator, servant, agent or employee shall, directly or indirectly:
A.   Permit any indecent, immoral or profane language or indecent, immoral or disorderly conduct;
B.   Permit the consumption of any alcoholic liquor on the premises while children being cared for are present;
C.   Permit the possession or use of any unlawful drug or narcotic, including marijuana, on the premises;
D.   Permit the use, legal or illegal, of prescription or nonprescription drugs by care providers that would impair an individual's ability to supervise or transport children;
E.   Permit the use of prescription drug or nonprescription drug without written parental consent;
F.   Perform any work or activities that interfere with the care of children in the home during the hours of childcare. Household duties related to the care of the children may be performed as necessary. The operator shall be responsible for the care and supervision of the children at all times;
G.   Utilize an unsupervised care provider or substitute care provider under the age of eighteen (18) years, or a caregiver not possessing a provider license;
H.   Home providers in residential zones may not have an employee unless a special use permit has been obtained;
I.   Permit smoking, including the use of any electronic nicotine delivery system or other tobacco product, inside the facility, or in outdoor areas within twenty five feet (25') of the premises and all doors and windows, during all hours the facility is in operation; or in vehicles when children are present. E-smoking materials and tobacco products must be kept in a locked container at any time the facility is open for childcare;
J.   Permit the presence of any firearm, ammunition or other weapon outside a locked cabinet;
K.   Permit the continued presence of any person who requires a criminal history check under section 5.68.060 of this chapter and has been convicted of one or more of the crimes enumerated in section 5.68.060 of this chapter, or who has been convicted of an amended charge arising from one of the enumerated crimes in section 5.68.060 of this chapter, or who has been charged with a crime enumerated in section 5.68.060 of this chapter and it is still pending or has no disposition; or
L.   Permit the temperature in any room where children are present to be less than sixty eight degrees Fahrenheit (68°F), or to exceed seventy five degrees Fahrenheit (75°F) during winter months or eighty two degrees Fahrenheit (82°F) during summer months; or permit children to play outdoors when the temperature is extreme such that the children are at risk of physical harm. In addition, proper ventilation must be maintained in any room where children are present. If two (2) persons with authority over childcare facilities determine that conditions violate this chapter, the owner/operator must move the children to an area which meets the requirements of this section or add appropriate equipment to bring the conditions into compliance with this chapter;. or
M.   Through negligence, recklessness, or intentional misconduct, injure a child, physically, mentally, or emotionally, or commit a crime against a child, or knowingly allow an employee or volunteer to do so.
SECTION 10.  That Table A of section 5.68.130 of the Coeur d'Alene Municipal Code be amended as follows:
 
Babies 0 - 14 months 
Your count x 2 points 
Waddlers 14 - 24 months 
Your count x 1.52 points 
Toddlers 24 - 36 months 
Your count x 1.5 points 
Preschool 3 - 4 years 
Your count x 1 point 
Pre-K 4 - 5 years 
Your count x 1 point 
School age 5 and older 
Your count x 1/2 point 
 
Total points (may not exceed 12) 
 
 
SECTION 11.All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed.
SECTION 12. The provisions of this ordinance are severable and if any provision, clause, sentence, subsection, word or part thereof is held illegal, invalid, or unconstitutional or inapplicable to any person or circumstance, such illegality, invalidity or unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, subsections, words or parts of this ordinance or their application to other persons or circumstances.  It is hereby declared to be the legislative intent that this ordinance would have been adopted if such illegal, invalid or unconstitutional provision, clause sentence, subsection, word, or part had not been included therein.
SECTION 13. After its passage and adoption, a summary of this Ordinance, under the provisions of the Idaho Code, shall be published once in the official newspaper of the City of Coeur d'Alene, and upon such publication shall be in full force and effect.
   Passed under suspension of rules upon which a roll call vote was duly taken and duly enacted an Ordinance of the City of Coeur d’Alene at a regular session of the City Council on September 3, 2019.
APPROVED, ADOPTED and SIGNED this 3rd day of September, 2019.
 
                                              ________________________________
                                             Steve Widmyer, Mayor
 
ATTEST:
_____________________________
Renata McLeod, City Clerk
SUMMARY OF COEUR D’ALENE ORDINANCE NO. 3640
Amending sections in Title 5, Chapter 68, Coeur d’Alene Municipal Code,
and Adding new section 5.68.103 to the Coeur d’Alene Municipal Code
AN ORDINANCE AMENDING SECTIONS 5.68.040, 5.68.050, 5.68.060, 5.68.100, 5.68.110, AND 5.68.130 OF THE MUNICIPAL CODE OF THE CITY OF COEUR D’ALENE, KOOTENAI COUNTY, IDAHO; AMENDING THE TITLE OF SECTION 5.68.100; ADDING A NEW SECTION, 5.68.103, TO THE COEUR D’ALENE MUNICIPAL CODE; PROVIDING FOR THE REPEAL OF CONFLICTING ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE PUBLICATION OF A SUMMARY; AND PROVIDING FOR AN EFFECTIVE DATE.  THE FULL TEXT OF THE SUMMARIZED ORDINANCE NO. 3640 IS AVAILABLE AT COEUR D’ALENE CITY HALL, 710 E. MULLAN AVENUE, COEUR D’ALENE, IDAHO 83814 IN THE OFFICE OF THE CITY CLERK.
 
 
                                    
                  Renata McLeod, City Clerk
STATEMENT OF LEGAL ADVISOR
       I, Randall R. Adams, am a Chief Deputy City Attorney for the City of Coeur d’Alene, Idaho.  I have examined the attached summary of Coeur d’Alene Ordinance No. 3640, Amending sections in Title 5, Chapter 68, Coeur d’Alene Municipal Code, and Adding new section 5.68.103 to the Coeur d’Alene Municipal Code, and find it to be a true and complete summary of said ordinance which provides adequate notice to the public of the context thereof.
   DATED this 3rd day of September, 2019.
                                      ________________________________________________
                                       Randall R. Adams, Chief Civil Deputy City Attorney