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Home My WebLink AboutOrdinance 6368113 West Mountain Street Fayetteville, AR 72701 (479) 57"323 Ordinance: 6368 File Number: 2020-0709 AMEND §130.01 ADOPTION OF STATE CRIMINAL CODE: AN ORDINANCE TO AMEND § 130.01 ADOPTION OF STATE CRIMINAL CODE OF THE FAYE77EV/LLECODE TO INCLUDE A HATE CRIME COMPONENT WITHIN CITY PROSECUTIONS OF CERTAIN STATE CRIMINAL MISDEMEANORS WHEREAS, the vast majority of states recognize that when certain crimes are committed to hurt or terrorize persons because of their race, religion, gender, gender identity, sexual orientation, disability or national origin, such especially reprehensible and unacceptable conduct should be properly identified and criminally punished as "hate crimes;" and WHEREAS, the Legislature has enacted A.C.A. §16-123-106, Hate offenses to authorize a civil action for intimidation, harassment, violence or vandalism directed at a victim because of racial._ religious or ethnic animosity, but such victims deserve further protection; and WHEREAS, Arkansas is one of the last states in our nation which ignores the intentionally cruel and terrorizing nature of these hate crimes by failing to label them as hate crimes or to criminally punish the perpetrators for these hate crimes; and WHEREAS, the City of Fayetteville wishes to do everything legally possible to shine the light on those who commit such hate crimes: and WHEREAS, the City Council is "authorized and empowered to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor' (A.C.A. § 14-55-501); and WHEREAS, "the penalties fixed by a city must fall within the state minimums and maximums." Ford v. City ojHot Springs, 294 Ark. 435, 743 S.W. 2d 394,395 (1988); and Page 1 Printed on 10121120 Ordinance: 6368 File Number. 2020-0709 WHEREAS; a city ordinance based upon a state law making an act a misdemeanor must have the exact same punishment provision as that state criminal law and may neither exceed nor allow "less severe penalties... than are prescribed for similar offenses against the state laws" (A.C.A. § 14-55-502 State law to be followed); and WHEREAS, when a criminal commits acts in such manner as to be guilty of a state misdemeanor and commits such criminal conduct with the intention to hurt or terrorize the victim or others because of their race, religion, gender, gender identity, national origin, sexual orientation, or disability, the City Prosecutor should be able to present evidence of such hate crime intention to the Court and jury. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends Article I § 130.01 Adoption of State Criminal Code by repealing it in its entirety and enacting a replacement Article I §130.01 as follows: "130.01 Adoption by Reference of Appropriate State Criminal Misdemeanor Statutes as Violations of the Fayetteville Code with the Authorization for the Fayetteville City Prosecutor to also Prove a Hate Crime Element for such Violation. (A) This section shall be called the `Hate Crime Recognition as Deterrence Code." (B) The City of Fayetteville hereby adopts by reference the Arkansas State Criminal Code for the following misdemeanors found within that Code and determines that any person who would be guilty of a misdemeanor pursuant to one of the below listed crimes and also commits such criminal conduct with the intention or purpose to hurt, intimidate or terrorize the victim or others because of their actual or perceived race, religion, gender, gender identity, national origin, sexual orientation or disability would be guilty of violating this Hate Crime Recognition as Deterrence Code and subject to the exact penalties prescribed for these misdemeanors pursuant to State Law. (1) Battery in the Third Degree, A.C.A. §5-13-203 (2) Assault in the Second Degree, A.C.A. §5-13-206 (3) Assault in the Third Degree, A.C.A. §5-13-207 (4) Coercion, A.C.A.§5-13-208 (5) Terroristic Threatening, A.C.A. §5-13-301 (6) Arson, A.C.A. §5-38-301 (7) Criminal Mischief in First Degree, A.C.A. §5-38-203 Page 2 Printed an 10/21/20 Ordinance.' 6368 File Number 2020-0709 (8) Criminal Mischief in Second Degree, A.C.A. §5-38-204 (9) Filing False report with law enforcement agency, A.C.A. §5-54-122 (10) Disorderly Conduct, A.C.A.§5-71-207 (II) Harassment, A.C.A.§5-71-208 (12) Harassing Communication, A.C.A.§5-71-209 (13) Communication a False Alarm, A.C.A. §5-71-210 (14) Threatening afire or bombing, A.C.A. §5-71-211 (15) Cyberbullying, A.C.A.§5-71-217 (16) Stalking in the Third Degree, A.C.A. §5-71-229(c) This adoption by reference of the above listed sections of the Arkansas Criminal Code shall also include any and all future amendments to those identified sections relating to misdemeanors and punishments therefor. (C)The City Prosecutor shall report annually during the first City Council meeting in May of the number of suspects that the City Prosecutor's Officer has prosecuted under this Hate Crimes Recognition as Deterrence Code and the number of guilty verdicts, guilty or no contest pleas obtained for the previous annual period ending March 31. (D)Severability. If any word, phrase, clause, sentence, item, paragraph, section, or title of this ordinance or of the Hate Crimes Recognition as Deterrence Code is declared or adjudged to be illegal, invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of the ordinance or Code which shall remain in full force and effect as if the portion so declared or adjudged illegal, invalid or unconstitutional was not originally a part of the ordinances or Code. PASSED and APPROVED on 10/20/2020 Attest: 0,ER Kt/ Itf 07 Y � F 0111. 9PG If Kara Paxton, City Clerk Treasurer FAYE)7EV/(/E. X: s�• :99 sy� 4NSP J G ��N COVtN��`v�` Page 3 Printed on 10121120 QE iw El,, 1 � m ata. �ek4N5°S City of Fayetteville, Arkansas Text File File Number: 2020-0709 113 West Mountain Street Fayetteville, AR 72701 (479)575•8323 Agenda Date: 10/20/2020 Version: t Status: Passed In Control: City Council Meeting Fite Type: Ordinance Agenda Number: B.2 AMEND §130.01 ADOPTION OF STATE CRIMINAL CODE: AN ORDINANCE TO AMEND § 130.01 ADOPTION OF STATE CRIMINAL CODE OF THE FAYETTEV/LLECODE TO INCLUDE A HATE CRIME COMPONENT WITHIN CITY PROSECUTIONS OF CERTAIN STATE CRIMINAL MISDEMEANORS WHEREAS, the vast majority of states recognize that when certain crimes are committed to hurt or terrorize persons because of their race, religion, gender; gender identity, sexual orientation, disability or national origin, such especially reprehensible and unacceptable conduct should be properly identified and criminally punished as "hate crimes;" and WHEREAS, the Legislature has enacted A.C.A. §16-123-106, Hate offenses to authorize a civil action for intimidation, harassment, violence or vandalism directed at a victim because of racial, religious or ethnic animosity, but such victims deserve further protection; and WHEREAS, Arkansas is one of the last states in our nation which ignores the intentionally cruel and terrorizing nature of these hate crimes by failing to label them as hate crimes or to criminally punish the perpetrators for these hate crimes; and WHEREAS, the City of Fayetteville wishes to do everything legally possible to shine the light on those who commit such hate crimes: and WHEREAS, the City Council is "authorized and empowered to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor" (A.C.A. § 14-55-501); and WHEREAS, "the penalties fixed by a city must fall within the state minimums and maximums," Ford v. Ciq+of Hot Springs, 294 Ark. 435, 743 S.W. 2d 394, 395 (1988); and WHEREAS, a city ordinance based upon a state law making an act a misdemeanor must have the exact same punishment provision as that state criminal law and may neither exceed nor allow "less severe penalties... than are prescribed for similar offenses against the state laws" (A.C.A. §14-55-502 State law to be followed); and WHEREAS, when a criminal commits acts in such manner as to be guilty of a state misdemeanor and commits such criminal conduct with the intention to hurt or terrorize the victim or others because of their race, religion, gender, gender identity, national origin, sexual orientation, or disability, the City Prosecutor should be able to City of Fayetteville, Antansas page t PnMed on 10MI2020 File Number: 2020-0709 present evidence of such hate crime intention to the Court and jury. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends Article I § 130.01 Adoption of State Criminal Code by repealing it in its entirety and enacting a replacement Article 1 § 130.01 as follows: "130.01 Adoption by Reference of Appropriate State Criminal Misdemeanor Statutes as Violations of the Fayetteville Code with the Authorization for the Fayetteville City Prosecutor to also Prove a Hate Crime Element for such Violation. (A) This section shall be called the "Hare Crime Recognition as Deterrence Code " (B) The City of Fayetteville hereby adopts by reference the Arkansas Stare Criminal Code for the following misdemeanors found within that Code and determines that any person who would be guilty of a misdemeanor pursuant to one of the below listed crimes and also commits such criminal conduct with the intention or purpose to hurt, intimidate or terrorize the victim or others because of their actual or perceived race, religion, gender, gender identity, national origin, sexual orientation or disability would be guilty of violating this Hale Crime Recognition as Deterrence Code and subject to the exact penalties prescribed for these misdemeanors pursuant to State Law. (1) Battery in the Third Degree, A.C.A. §5-13-203 (2) Assault in the Second Degree, A.C.A.§5-13-206 (3) Assault in the Third Degree, A.C.A. §5-13-207 (4) Coercion, A.C.A. §5-13-208 (5) Terroristic Threatening, A.C.A. §5-13-301 (6) Arson, A.C.A. §5-38-301 (7) Criminal Mischief in First Degree, A.C.A. §5-38-203 (8) Criminal Mischief in Second Degree, A.C.A. §5-38-204 (9) Filing False report with law enforcement agency, A.C.A. §5-54-122 (10) Disorderly Conduct, A.C.A. §5-71-207 (11) Harassment, A.C.A.§5-71-208 (12) Harassing Communication, A.C.A. §5-71-209 (13) Communication a False Alarm, A.C.A. §5-71-210 (14) Threatening a fire or bombing, A.C.A. §5-71-211 (15) Cyberbullying,A.C.A.§5-71-217 (16) Stalking in the Third Degree, A.C.A. §5-71-229(c) This adoption by reference of the above listed sections of the Arkansas Criminal Code shall also include any and all future amendments to those identified sections relating to misdemeanors and punishments therefor. , (C)The City Prosecutor shall report annually during the first City Council meeting in May of the number of City of Fayetteville, Arkansas Page 2 Printed on 102112020 File Number., 2020-0709 suspects that the City Prosecutors Officer has prosecuted under this Hare Crimes Recognilion as Deterrence Code and the number of guilty verdicts, guilty or no contest pleas obtained for the previous annual period ending March 31. (D)Severability. If any word, phrase, clause, sentence, item, paragraph, section, or title of this ordinance or of the Hate Crimes Recognition as Deterrence Code is declared or adjudged to be illegal, invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of the ordinance or Code which shall remain in full force and effect as if the portion so declared or adjudged illegal, invalid or unconstitutional was not originally a part of the ordinances or Code. City of Fayetteville, Arkansas Page 3 Printed an 1012112020 Legistar 1D No.: 2020- 7, j AGENDA REQUEST FORM FOR: Council Meeting of September 1, 2020 FROM: Council Member Teresa Turk ORDINANCE OR RESOLUTION TITLE AND SUBJECT: AN ORDINANCE TO AMEND §130.01 ADOPTION OF STATE CRIMINAL CODE OF THE FA YEfTEVILLE CODE TO INCLUDE A HATE CRIME COMPONENT WITHIN CITY PROSECUTIONS OF CERTAIN STATE CRIMINAL MISDEMEANORS APPROVED FOR AGENDA; 3vaLa� �— 0(1� fZo Council Member Teresa Turk Date (: ' - � i� C, =----- �> r Iq 2-0z C, City Attorney Kit Williams Date Approved as to form ORDINANCE NO. AN ORDINANCE TO AMEND § 130.01 ADOPTION OF STATE CRIMINAL CODE OF THE FAYETTEVILLE CODE TO INCLUDE A HATE CRIME COMPONENT WITHIN CITY PROSECUTIONS OF CERTAIN STATE CRIMINAL MISDEMEANORS WHEREAS, the vast majority of states recognize that when certain crimes are committed to hurt or terrorize persons because of their race, religion, gender, gender identity, sexual orientation, disability or national origin, such especially reprehensible and unacceptable conduct should be properly identified and criminally punished as "hate crimes;" and WHEREAS, the Legislature has enacted A.C.A. §16-123-106, Hate offenses to authorize a civil action for intimidation, harassment, violence or vandalism directed at a victim because of racial, religious or ethnic animosity, but such victims deserve further protection; and WHEREAS, Arkansas is one of the last states in our nation which ignores the intentionally cruel and terrorizing nature of these hate crimes by failing to label them as hate crimes or to criminally punish the perpetrators for these hate crimes; and WHEREAS, the City of Fayetteville wishes to do everything legally possible to shine the light on those who commit such hate crimes; and WHEREAS, the City Council is "authorized and empowered to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor" (A.C.A. §14-55-501); and WHEREAS, "the penalties fixed by a city must fall within the state minimums and maximums," Ford v. City of Hot Springs, 294 Ark. 435, 743 S.W. 2d 394, 395 (1988); and WHEREAS, a city ordinance based upon a state law making an act a misdemeanor must have the exact same punishment provision as that state criminal law and may neither exceed nor allow "less severe penalties... than are prescribed for similar offenses against the state laws" (A.C.A. §14-55-502 State law to be followed); and WHEREAS, when a criminal commits acts in such manner as to be guilty of a state misdemeanor and commits such criminal conduct with the intention to hurt or terrorize the victim or others because of their race, religion, gender, gender identity, national origin, sexual orientation, or disability, the City Prosecutor should be able to present evidence of such hate crime intention to the Court and jury. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends Article I §130.01 Adoption of State Criminal Code by repealing it in its entirety and enacting a replacement Article i § 130.01 as follows: "130.01 Adoption by Reference of Appropriate State Criminal Misdemeanor Statutes as Violations of the Fayetteville Code with the Authorization for the Fayetteville City Prosecutor to also Prove a Hate Crime Element for such Violation. (A)This section shall be called the "Hate Crime Recognition as Deterrence Code." (B) The City of Fayetteville hereby adopts by reference the Arkansas State Criminal Code for the following misdemeanors found within that Code and determines that any person who would he guilty of a misdemeanor pursuant to one of the below listed crimes and also commits such criminal conduct with the intention or purpose to hurt, intimidate or terrorize the victim or others because of their actual or perceived race, religion, gender, gender identity, national origin, sexual orientation or disability would be guilty of violating this Hate Crime Recognition as Deterrence Code and subject to the exact penalties prescribed for these misdemeanors pursuant to State Law. (1) Battery in the Third Degree, A.C.A. §5-13-203 (2) Assault in the Second Degree, A.C.A. §5-13-206 (3) Assault in the Third Degree, A.C.A. §5-13-207 (4) Coercion, A.C.A. §5-13-208 (5) Terroristic Threatening, A.C.A. §5-13-301 (6) Arson, A.C.A. §5-38-301 (7) Criminal Mischief in First Degree, A.C.A. §5-38-203 (8) Criminal Mischief in Second Degree, A.C.A. §5-38-204 (9) Filing False report with law enforcement agency, A.C.A. §5-54-122 (10) Disorderly Conduct, A.C.A. §5-71-207 (11)Harassment, A.C.A. §5-71-208 (12) Harassing Communication, A.C.A. §5-71-209 (13) Communication a False Alarm, A.C.A. §5-71-210 (14) Threatening a fire or bombing, A.C.A. §5-71-211 (15)Cyberbullying, A.C.A. §5-71-217 (16) Stalking in the Third Degree, A.C.A. §5-71-229(c) This adoption by reference of the above listed sections of the Arkansas Criminal Code shall also include any and all future amendments to those identified sections relating to misdemeanors and punishments therefor. (C)The City Prosecutor shall report annually during the first City Council meeting in May of the number of suspects that the City Prosecutor's Officer has prosecuted under this Hate Crimes Recognition as Deterrence Code and the number of guilty verdicts, guilty or no contest pleas obtained for the previous annual period ending March 31. (D)Severability. If any word, phrase, clause, sentence, item, paragraph, section, or title of this ordinance or of the Hate Crimes Recognition as Deterrence Code is declared or adjudged to be illegal, invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of the ordinance or Code which shall remain in full force and effect as if the portion so declared or adjudged illegal, invalid or unconstitutional was not originally a part of the ordinances or Code. PASSED and APPROVED this 1st day of September, 2020. I:i3S OUVA�Tr� Un LIONELD JORDAN, Mayor ATTEST: By: KARA PAXTON, City Clerk/Treasurer Submit Public Comment This page is provided for efficient submission of public comment for City Council and Planning Commission meetings. All submissions must be directly related to a specific agenda item for the next meeting. Please ensure your comments conform to the Rules of Order and Procedure. RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY COUNCIL Full Name* Janet Graige Address or Ward* C: Address i Ward Locate Your Ward Number Ward 'r Ward 2 Phone Number 8302852836 Email janetlgraige@gmail.com Meeting Body" City Council Agenda Item Hale crime Number/Subject Please dick the link below to navigate to the Agenda Page Locate City Council Agenda Item Locate Planning Commission Agenda Item Position to Favor Comments Please vote in favor of harsh penalties for hate crimes. White supremacy is alive and well in Fayetteville and must be called out as domestic terrorism by all means necessary. Council needs to be a voice for the marginalized and those not at the table. This includes LGBTO, Black youth and adults• marginalized women. refugee and immigrant populations and all groups that are on the fringe. As our Council and those holding power in this city are still predominately while and hetero male Christian we need to address the prejudice, discrimination and systemic racism present in these systems by folks that don't usually see or hear the marginalized voices very well. Attachments .POP prelened Section from the RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY COUNCIL Adopted 01/07/2020 by Resolution #01-20 & Amended 06/16/2020 by Resolution #170-20: Public Comments. Puhlic comment m a City Council meetirw shall he allowed !ix a!1 nxmbers of the audience who hucc signed up prior to the beginning of the agenda item ihey wish.ul address being opened for public comment. Speakers shall be limited to a mmJmwn of five (i) minutes io he broken into scgmcuts )[*three and two minutes. Amendments may receive public comments only if approved by the City Council by unanimous consent or mpjurily vote. If public comment is allowed lot an amendment, speakers will onh• be allowed to speak tier three (3) minutes. The City Council ntay allot% both a speaker additional time aid an unsigned -up person to sputk by ❑nanimous Consent or mulorily vote courtesy an per , All members of the public, all city staff and elected officials shall accord the utmost courtesy and respect to each other at all times. All shall refrain from rude or derogatory remarks, reflections as to integrity, abusive comments and'statements about motives or personalities. Any member of the public who violates these standards shall be ruled out of order by the Mayor; must immediately cease speaking and shall leave the podium. Enter the text you want this field to display Ll DEPARTMENTAL CORRESPONDENCE OFFICE OF THE Crry A,rTORNEv TO: Mayor Jordan City Council Kit Williams City Altorne}+ Blake Pennington Assistnnl City Allorney Jodi Balker Paralegal CC: Susan Norton, Chief of Staff FROM: Kit Williams, City Attorney DATE: October 19, 2020 RE: The Hate Crime Ordinance Is Not Prohibited By The Intrastate Commerce Improvement Act I have been asked whether the proposed "Hate Crime Recognition as Deterrent Code" would violate A.C.A. §14-1-401 through 403 which the Arkansas Supreme Court used to invalidate the Uniform Civil Rights Protection Ordinance enacted by the Fayetteville citizens. I do not believe the Intrastate Commerce Improvement Act has any effect upon the proposed Hate Crime Ordinance. The Intrastate Commerce Improvement Act states: "(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." A.C.A. §14-1403(a) To support our ordinance, we pointed out that the penal law against Bullying enacted into state law defined 'Bullying" to include actions taken against persons based upon their sexual orientation or gender identity. Thus, we argued that this "protected classification" had already been enacted "in state law" and thus our ordinance could not violate the Intrastate Commerce Improvement Act. The Attorney General issued her Opinion No 2015-088 immediately before the Referendum Election on the Uniform Civil Rights Protection ordinance began taking place. In her Opinion, the Attorney General argued that "the Anti -Bullying statute is not T a nondiscrimination law as contemplated by Act 137 (Intrastate Commerce Improvement Act)." If that is true, then the proposed "Hate Crime Recognition as Deterrent Code is also "not a nondiscrimination law as contemplated by Act 137." Instead, this ordinance becomes a part (in proper circumstances) of state criminal law, not state nondiscrimination law. just like the state Anti -Bullying law, the Hate Crime Recognition as Deterrent Code recognizes that persons may be victimized or terrorized because of their gender identity or sexual orientation just as in the Anti - Bullying statute. Our Hate Crime Code empowers the City Prosecutor to prove such victimization and terrorizing of persons for their sex, race, religion, gender identity, sexual orientation, etc. to the Court or jury. In striking down of citizen -enacted Uniform Civil Rights Protection ordinance, the Arkansas Supreme Court held our ordinance "is an obstacle to the objectives and purposes set forth in the General Assembly's Act and therefore it cannot stand." 2019 Ark 30 at page 3. The Hate Crime Recognition as Deterrent Code clearly is not an obstacle to the purposes of the Intrastate Commerce Improvement Act. 14-1402 Purpose - Finding "(a) The purpose of this subchapter is to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activity. (b) The General Assembly finds that uniformity of law benefits the businesses, organizations, and employers seeking to do business in the state and attracts new businesses, organizations, and employers to the state." Committing a misdemeanor crime is not intrastate commerce. It is intrastate criminal activity. Being able to prove a criminal committed the criminal act "with the intention or purpose to hurt, intimidate or terrorize the victim or others because of their actual or perceived race, religion, gender, gender identity, national origin, sexual orientation or disability" is not remotely a part of intrastate commerce. The Hate Crime Recognition as Deterrent Code follows the Anti -Bullying statute in recognizing victims of crimes bullied or abused because of their gender, race, religion, sexual orientation, gender identity, etc. and comes from a part of the State Criminal Code to punish wrong doers. Therefore, the Intrastate Commerce Improvement Act (as is clear from both its title and express purposes) has no application to state criminal law nor to the Hate Crime Recognition as Deterrent ordinance. 2 NORTHWE T A,RKMW Democrat V 0axette FQ. 7LK 1-0; F 'yG 721]17.47�.:4--7C' .. --�.F? .1 �8• ..,�,, ,..n_,..."'' AFFIDAVIT OF PUBLICATION I, Brittany Smith, do solemnly swear that I am the Accounting Legal Clerk of the Northwest Arkansas Democrat -Gazette, a daily newspaper printed and published in said County, State of Arkansas; that I was so related to this publication at and during the publication of the annexed legal advertisement the matter of: Notice pending in the Court, in said County, and at the dates of the several publications of said advertisement stated below, and that during said periods and at said dates, said newspaper was printed and had a bona fide circulation in said County; that said newspaper had been regularly printed and published in said County, and had a bona fide circulation therein for the period of one month before the date of the first publication of said advertisement; and that said advertisement was published in the regular daily issues of said newspaper as stated below. City of Fayetteville Ord 6368 Was inserted in the Regular Edition on: October 25, 2020 Publication Charges: $381.52 Brittany Smith Subscribed and sworn to before me This 29 day of , 2020. Notary Public /u My Commission E 2 � "NOT leom Affidavit Ordinance:6368 File Number: 2020-0709 AMEND §130.01 ADOPTION OF STATE CRIMINAL CODE: AN ORDINANCE TO AMEND § 130.01 ADOPTION OF STATE CRIMINAL CODE OF THE FAYETTEVILLE CODE TO INCLUDE A HATE CRIME COMPONENT WITHIN CITY PROSECUTIONS OF CERTAIN STATE CRIMINAL MISDEMEANORS WHEREAS, the vast majority of stales recognize that when certain crimes are committed to hurt or terrorize persons because of their race, religion, gender, gender identity, sexual orientation, disability or national origin, such especially reprehensible and unacceptable conduct should be properly identified and criminally punished as "hate crimes;" and WHEREAS, the Legislature has enacted A.C.A.§16-123-106, Hate offenses to authorize a civil action for intimidation, harassment, violence or vandalism directed at a victim because of racial, religious or ethnic animosity, but such victims deserve further protection; and WHEREAS, Arkansas is one of the last states in our nation which ignores the intentionally cruel and terrorizing nature of these hate crimes by failing to label them as hate crimes or to criminally punish the perpetrators for these hate crimes; and WHEREAS, the City of Fayetteville wishes to do everything legally possible to shine the light on those who commit such hate crimes; and WHEREAS, the City Council is "authorized and empowered to prohibit and punish any aa, matter, or thing which the laws of this state make a misdemeanor" (A.C.A. §14-55- 501); and WHEREAS, "the penalties fixed by a city must fall within the state minimums and maximums," Ford v. City of Hot Springs, 294 Ark. 435, 743 S.W. 2d 394, 395 (1988); and WHEREAS, a city ordinance based upon a state law making an act a misdemeanor must have the exact same punishment provision as that state criminal law and may neither exceed nor allow "less severe penalties... than are prescribed for similar offenses against the state laws" (A.C.A. § 14-55-502 State law to be followed); and WHEREAS, when a criminal commits acts in such manner as to be guilty of a state misdemeanor and commits such criminal conduct with the intention to hurt or terrorize the victim or others because of their race, religion, gender, gender identity, national origin, sexual orientation, or disability, the City Prosecutor should be able to present evidence of such hate crime intention to the Court and jury. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends Article I § 130.01 Adoption of State Criminal Code by repealing it in its entirety and enacting a replacement Article 1 § 130.01 as follows: "130.01 Adoption by Reference of Appropriate State Criminal Misdemeanor Statutes as Violations of the Fayetteville Code with the Authorization for the Fayetteville City Prosecutor to also Prove a Hate Crime Element for such Violation. (A) This section shall be called the "Hate Crime Recognition as Deterrence Code." (B) The City of Fayetteville hereby adopts by reference the Arkansas State Criminal Code for the following misdemeanors found within that Code and determines that any person who would be guilty of a misdemeanor pursuant to one of the below listed crimes and also commits such criminal conduct with the intention or purpose to hurt, intimidate or terrorize the victim or others because of their actual or perceived race, religion, gender, gender identity, national origin, sexual orientation or disability would be guilty of violating this Hate Crime Recognition as Deterrence Code and subject to the exact penalties prescribed for these misdemeanors pursuant to State Law. (1) Battery in the Third Degree, A.C.A.§5-13-203 (2) Assault in the Second Degree, A.C.A. §5- 13-206 (3) Assault in the Third Degree, A.C.A. §5-13-207 (4) Coercion, A.C.A.§5-13-208 (5) Terroristic Threatening, A.C.A. §5-13-301 (6) Arson, A.C.A.§5-38-301 (7) Criminal Mischiefin First Degree, A.C.A.§5-38-203 (8) Criminal Mischief in Second Degree, A.C.A.§5-38-204 (9) Filing False report with law enforcement agency, A.C.A. §5- 54-122 (10) Disorderly Conduct, A.C.A.§5-71-207 (11) Harassment, A.C.A. §5- 71-208 (12) Harassing Communication, A.C.A. §5-71-209 (13) Communication a False Alarm, A.C.A. §5-71-210 (14) Threatening a fire or bombing, A.C.A. §5-71-211 (15) Cyberbullying,A.C.A. §5-71-217 (16) Stalking in the Third Degree, A.C.A. §5-71-229(c) This adoption by reference of the above listed sections of the Arkansas Criminal Code shall also include any and all future amendments to those identified sections relating to misdemeanors and punishments therefor. (C)The City Prosecutor shall report annually during the first City Council meeting in May of the number of suspects that the City Prosecutor's Officer has prosecuted under this Hate Crimes Recognition as Deterrence Code and the number of guilty verdicts, guilty or no contest pleas obtained for the previous annual period ending March 31. (D),Severability. If any word, phrase, clause, sentence, item, paragraph, section, or title of this ordinance or of the Hate Crimes Recognition as Deterrence Code is declared or adjudged to be illegal, invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of the ordinance or Code which shall remain in full force and effect as if the portion so declared or adjudged illegal, invalid or unconstitutional was not originally a part of the ordinances or Code. PASSED and APPROVED on 10120/2020 Approved: Lioneld Jordan, Mayor Attest: Kara Paxton, City Clerk Treasurer 10/25/2020 75338309