HomeMy WebLinkAboutOrdinance 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
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0111. 9PG If
Kara Paxton, City Clerk Treasurer FAYE)7EV/(/E. X:
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Page 3 Printed on 10121120
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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
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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
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Phone Number
8302852836
Email
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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.
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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