October 9, 2002
Re: Ordinance citations and summonses
Dear City Administrator:
Rex Barton asked me to write you to explain the differences and similarities between ordinance
citations and summonses. You should be aware that the following explanation does not include
information relative to citations authorized for state misdemeanors and traffic violations as
authorized by Tennessee Code Annotated, §§ 40-7-118 and 55-10-207, respectively. Nor does it
include information relative to citations that assistants to the state fire marshal may issue for
dangerous buildings under T.C.A. § 68-102-117 or the arrest powers of municipal arson
investigators under T.C.A. § 68-102-107. My understanding is that you are concerned only with
ordinance violations.
Who May Issue a Citation
These officers or employees may issue an ordinance citation: law enforcement officers of the
City and members of the fire department or building department who are designated as special
police officers by the City. The law also allows transit inspectors employed by a public
transportation system to issue citations, but I doubt this applies to your City. See T.C.A. § 7-63101.
Who May Issue a Summons
Any enforcement officer in the areas of sanitation, litter control, and animal control that is
designated by ordinance or resolution may issue ordinance summonses in their respective areas.
T.C.A. § 7-63-201.
What Happens When Person Charged Refuses to Sign Citation
When the charged person refuses to sign the citation and agree to appear, the officer must do a
custodial arrest and book the alleged offender as in other violations. T.C.A. § 7-63-104.
What Happens When Person Charged Refuses to Sign Summons
When the alleged violator refuses to sign the summons, the enforcement officer must either get
the city court clerk to issue a summons or get a law enforcement officer to witness the violation
and issue a citation or make an arrest. T.C.A. § 7-63-203.
What Happens When Person Fails to Appear after Signing Citation
If the alleged violator fails to appear after signing the citation, the city court must issue a warrant
for the offense and the additional offense of failure to appear if the City has adopted this as an
offense. The warrant or warrants must then be served by a law enforcement officer who must
arrest and book the alleged violator. T.C.A. § 7-63-105.
What Happens When Person Fails to Appear after Signing Summons
When the person fails to appear after signing a summons, the city court must issue a warrant
against the person as provided for failure to appear after signing a citation. It is not clear whether
this means the judge may also issue a warrant for failure to appear as allowed for citations. The
judge is authorized to issue “a warrant” and not a “warrant or warrants” as under the citation
provision. The plain language appears to preclude a warrant for failure to appear after signing a
summons agreement, although there is probably no good reason for a distinction. See T.C.A. § 763-204.
Witnessing of Alleged Violations
Under T.C.A. § 7-63-106, the officer with authority to issue a citation may issue the citation
although he/she did not witness the violation if after a personal investigation, he/she has probable
cause to believe a violation has occurred. Under T.C.A. § 7-63-201, the person designated by
ordinance to issue ordinance summonses must witness the violation before a summons may be
issued.
Citations and Summonses are Treated the Same in These Circumstances
The alleged offender must sign either the citation or summons and agree to appear in court at the
specified time to prevent his/her arrest. The city court must try the case brought by citation or
summons without the issuance or service of a warrant on the defendant. The citation or summons
must be treated as though it were a warrant properly served on the defendant. T.C.A. §§ 7-63102, 103, and 202.
Suggestions
Rex provided me a copy of your “Notice to Appear” form. It is not clear whether this is a citation
or a summons. It is referred to as a citation in the provisions about failure to appear, however, so
I assume this is what it is. Also, § 3-106 of the Municipal Code does not provide for the
commencement of actions in city court by ordinance summons. I was also unable to find any
authorization in your code for any official to issue ordinance summonses. It might be better if it
is called a citation rather than a Notice to Appear to be consistent with nomenclature in the state
statutes and to avoid confusion.
The first sentence of the “Notice” section of the form refers to the offense of failure to appear and
to a possible punishment of a jail sentence of up to 6 months and/or a $500 fine. T.C.A. § 7-63105 allows the court to issue a warrant for a separate offense of failure to appear if “the ... city
government has made the failure so to appear an offense, or has adopted the state law creating
such offense.” I was unable to find where your City has done either. You might want to talk to
your city attorney about drafting such an ordinance. It could read something like this: It is
unlawful for a person issued a citation for an ordinance violation knowingly to fail to appear in
city court at the place, date, and time agreed to in the citation unless the person has a reasonable
excuse.
As you know, under the consolidated cases of City of Chattanooga v. Davis and Barrett v.
Metropolitan Government of Nashville and Davidson County, 54 S.W.3d 248 (Tenn. 2001), the
maximum punishment for an ordinance violation is a fine of fifty dollars ($50.00). Only if the
fine is “remedial” is it allowed to exceed this amount. A fine for failing to appear would probably
be considered punitive rather than remedial. Section 7-63-105 contemplates that the failure to
appear will be an ordinance violation, so the maximum punishment will be a fifty dollar ($50.00
fine. Therefore, the first sentence should be changed to reflect the punishment for an ordinance
violation.
If the alleged offender were prosecuted for failure to appear under the state law (T.C.A. § 39-16609), that would have to be done in state court. Failure to appear for a misdemeanor is a Class A
misdemeanor. A Class A misdemeanor is punishable by a fine up to $2,500 or imprisonment for
up to eleven (11) months and twenty-nine (29) days, or both. This seems a little stiff for failure to
appear for an ordinance violation. The punishment noted in your form is for Class B
misdemeanors. The clear intent of the statute is that the warrant for failure to appear that is to be
issued must be done under an ordinance rather than the state law, but first the City must have an
ordinance. Therefore I recommend that the City adopt an ordinance making failure to appear an
ordinance violation.
T.C.A. § 7-63-102 requires that the alleged ordinance offender “sign an agreement to appear at
the time and place indicated, and to waive the issuance and service of a warrant upon the
offender.” I suggest that the second sentence in the “Notice” part of the form be changed to read:
“Without admitting guilt, I agree to appear at the place, time, and date indicated below, and I
waive the issuance and service of a warrant upon me for the alleged violation.”
I hope this is helpful. If we may be of further assistance, please contact us.
Sincerely,
Dennis Huffer
Legal Consultant
xc: Rex Barton