New Mexico § 3-18-17 - Nuisances and offenses; regulation or prohibition

§ 3-18-17. Nuisances and offenses; regulation or prohibition

A municipality, including a home rule municipality that has adopted a charter pursuant

to Article 10, Section 6 of the constitution of New Mexico , may by ordinance: A. define a nuisance, abate a nuisance and impose penalties upon a person who creates

or allows a nuisance to exist; provided that: (1) the total amount of assessed penalties and fines imposed by an ordinance for failure

to obey a traffic sign or signal, including a red light offense or violation, or for

a speeding offense or violation shall not exceed one hundred dollars ($100), provided

that the total for unlawful parking in a space or for blocking an access intended

for persons with significant mobility limitation shall not be less than or exceed

the fines provided in Section 66-7-352.5 NMSA 1978; (2) no fees or costs shall be imposed pursuant to this subsection; (3) in a municipality with a population of two hundred thousand or greater as of the

last federal decennial census, the penalties, fines and procedures imposed for failure

to obey a traffic sign or signal, including a red light offense or violation, or for

a speeding offense or violation shall be subject to the following: (a) each month, or other period set by contract, the municipality shall retain from

the gross total amount of penalties and fines assessed and collected that month or

period an amount subject to audit that is equal to the sum of the setup, maintenance,

support and processing services fees charged to the municipality for that month or

period pursuant to contractual terms by a vendor providing systems and services that

assist the municipality in imposing penalties or fines as provided in Paragraph (1)

of this subsection; (b) less the retention authorized in Subparagraph (a) of this paragraph: 1) one-half

of the net total amount assessed and collected by the municipality pursuant to this

section shall be remitted to the state treasurer and distributed to the general fund;

and 2) one-half shall be retained by the municipality for municipal traffic safety

programs and to offset the municipality's reasonable costs directly related to administering

a program as provided in Paragraph (1) of this subsection; (c) the municipality shall cause an audit of the program and contract described in

Subparagraph (a) of this paragraph to be conducted by the state auditor or an independent

auditor selected by the state auditor; (d) if in the audit conducted pursuant to Subparagraph (c) of this paragraph it is

determined that any amount retained by the municipality pursuant to this paragraph

is in excess of the amount the municipality is authorized to retain, the municipality

shall remit, when the audit is finalized, the amount in excess to the state treasurer

to be distributed and transferred as provided in Item 1) of Subparagraph (b) of this

paragraph; and (e) a respondent may select a hearing to contest a nuisance ordinance offense or violation

that shall either be conducted by a hearing officer appointed by the presiding judge

of the civil division of the district court with jurisdiction over the municipality

and in accordance with the rules of evidence and rules of civil procedure for the

district courts or that shall be conducted by a mail-in form alternative. The notice of violation shall clearly explain the process for requesting a hearing,

the hearing options, the deadline to request a hearing and where the request shall

be submitted. The burden of proof for violations is on the municipality and is a preponderance

of the evidence. A determination by the hearing officer shall not impose a total amount of penalties

or fines in excess of that provided in the nuisance ordinance; and (4) in a municipality other than a municipality with a population of two hundred thousand

or greater as of the last federal decennial census, the penalties, fines and procedure

imposed for failure to obey a traffic sign or signal, including a red light offense

or violation, or for a speeding offense or violation shall be subject to the following: (a) each month, or other period set by contract, the municipality shall retain from

the gross total amount of penalties and fines assessed and collected that month or

period an amount subject to audit that is equal to the sum of the setup, maintenance,

support and processing services fees charged to the municipality for that month or

period pursuant to contractual terms by a vendor providing systems and services that

assist the municipality in imposing penalties or fines as provided in Paragraph (1)

of this subsection; (b) less the retention authorized in Subparagraph (a) of this paragraph: 1) one-half

of the net total amount assessed and collected by the municipality pursuant to this

section shall be remitted to the state treasurer and distributed to the general fund;

and 2) one-half shall be retained by the municipality for municipal traffic safety

programs and to offset the municipality's reasonable costs directly related to administering

a program as provided in Paragraph (1) of this subsection; (c) the municipality shall cause an audit of the program and contract described in

Subparagraph (a) of this paragraph to be conducted by the state auditor or an independent

auditor selected by the state auditor; (d) if in the audit conducted pursuant to Subparagraph (c) of this paragraph it is

determined that any amount retained by the municipality pursuant to this paragraph

is in excess of the amount the municipality is authorized to retain, the municipality

shall remit, when the audit is finalized, the amount in excess to the state treasurer

to be distributed and transferred as provided in Item 1) of Subparagraph (b) of this

paragraph; and (e) a hearing provided for a contested nuisance ordinance offense or violation shall

be conducted by a hearing officer appointed by the presiding judge of the civil division

of the district court with jurisdiction over the municipality and in accordance with

the rules of evidence and rules of civil procedure for the district courts. If offered by the municipality, a respondent may select a hearing conducted by a

mail-in form alternative. The notice of violation shall clearly explain the process for requesting a hearing,

the hearing options, the deadline to request a hearing and where the request shall

be submitted. The burden of proof for violations is on the municipality and is a preponderance

of the evidence. A determination by the hearing officer shall not impose a total amount of penalties

or fines in excess of that provided in the nuisance ordinance; B. regulate or prohibit any amusement or practice that tends to annoy persons on a

street or public ground; and C. prohibit and suppress: (1) gambling and the use of fraudulent devices or practices for the purpose of obtaining

money or property; (2) the sale, possession or exhibition of obscene or immoral publications, prints,

pictures or illustrations; (3) public intoxication; (4) disorderly conduct; and (5) riots, noises, disturbances or disorderly assemblies in any public or private

place.