2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 18 - Powers of Municipalities
Section 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, fines, fees and costs 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) in a municipality with a population of two hundred thousand or greater as of the last federal decennial census, the penalties, fines, fees, costs 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, fines, fees and costs 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 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 and costs or fees 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 in penalties, fines, fees and costs by the municipality shall be remitted to the state treasurer and distributed to the administrative office of the courts, of which ten percent shall be credited to DWI drug court programs and ninety percent shall be transferred to the New Mexico finance authority for deposit into the metropolitan court bond guarantee 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 imposing penalties or fines and costs or fees as provided in Paragraph (1) of this subsection;

(c) in fiscal year 2009, and annually thereafter, 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 held by a hearing officer appointed by the presiding judge of the civil division of the district court with jurisdiction over the municipality, and the hearing itself shall be conducted following the rules of evidence and civil procedure for the district courts. The burden of proof for violations and defenses is a preponderance of the evidence. A determination by the hearing officer shall not impose a total amount of penalties, fines, fees and costs in excess of that provided in the nuisance ordinance; and

(3) 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, fees, costs 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, fines, fees and costs 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 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 and costs or fees 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 in penalties, fines, fees and costs by the municipality shall be remitted to the state treasurer, of which sixty-five percent shall be credited to the court automation fund, twenty percent to the traffic safety education and enforcement fund and fifteen percent to the judicial education fund; and 2) one-half of the net total amount assessed in penalties, fines, fees and costs 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 imposing penalties or fines and costs or fees as provided in Paragraph (1) of this subsection;

(c) in fiscal year 2009, and annually thereafter, the municipality shall cause an audit of the program and contract described in Subparagraph (a) of this paragraph and the money collected and distributed pursuant to 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 held by a hearing officer appointed by the presiding judge of the civil division of the district court with jurisdiction over the municipality, and the hearing itself shall be conducted following the rules of evidence and civil procedure for the district courts. The burden of proof for offenses or violations and defenses is a preponderance of the evidence. A determination by the hearing officer shall not impose a total amount of penalties, fines, fees and costs 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.

History: 1953 Comp., § 14-17-14, enacted by Laws 1965, ch. 300; 2008, ch. 91, § 1; 2009, ch. 121, § 1.

Cross references. — For abatement of a public nuisance, see 30-8-8 NMSA 1978.

For sexually oriented material harmful to minors, see 30-37-2 NMSA 1978.

The 2009 amendment, effective June 19, 2009, in Subsection A, deleted the former provision, which limited the penalties and fines that could be imposed by a municipality with a population of 200,000 or greater; in Subsection A(1), deleted "for each offense or violation" and added the new language; and after "shall not exceed", added the remainder of the sentence; added Subsection A(2); in Subsection (2)(b), after "Subparagraph (a) of this paragraph", added "1) one-half of"; added "penalties" and after "municipality shall be", added "remitted to the state treasurer and"; after "ten percent", deleted "the net total amount assessed"; and after "ninety percent", deleted "of the net total amount assessed"; added Item 2) in Subsection A(2)(b); added Subsections A(2)(d) and A(2)(e); and added Subsection A(3).

The 2008 amendment, effective July 1, 2008, included within a municipality, a home rule municipality that has adopted a charter pursuant to Article 10, Section 6 of the constitution of New Mexico and in Subsection A, added the provision that for a municipality with a population of 200,000 or greater the fines and costs or fees imposed for failure to obey a traffic signal shall be subject to Paragraphs (1) and (4) of Subsection A.

Red light camera ordinance did not deny procedural due process. — Where a municipal red light camera ordinance provided that vehicle owners charged with a violation of a red light camera ordinance were entitled to receive notice of the violation along with detailed information about the basis for the charge; that vehicle owners were entitled to a hearing before an impartial hearing officer at no cost; that the municipality had the burden to prove the violation; that the vehicle owner was entitled to hear and challenge the evidence; that the hearing officer was required to render a decision in writing; and that the vehicle owner was entitled to appeal the hearing officer's decision to district court and to recover costs if the appeal was successful, the ordinance did not violate the vehicle owner's right to procedural due process. Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Imposition of red light camera ordinance penalties. — Section 3-18-17 NMSA 1978 does not restrict a municipality's authority to impose penalties only upon the driver of a vehicle observed violating a red light camera ordinance. A municipality may hold registered owners of vehicles strictly and vicariously liable for violations of the ordinance for which the owner is unable or unwilling to nominate the actual driver or to prove a defense or where the owner is unsuccessful in asserting a defense. Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Motor Vehicle Code does not preempt the authority to enact a red light camera ordinance. — Where a municipal red light camera ordinance did not impose an affirmative disability or restraint on violators; the civil penalties for violations were purely monetary and were not criminally punitive; scienter was not necessary to a find a violation; the ordinance was a nuisance abatement ordinance; the civil penalties were rationally connected with abating a nuisance; the imposition of the civil penalties was not excessive in relation to the purpose of the ordinance to abate a nuisance; and the civil penalties imposed for violations of the ordinance were not sufficiently punitive to outweigh the civil remedial effect of the ordinance, the ordinance is not a criminal statute that is preempted by the Motor Vehicle Code. Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Red light camera ordinance did not deny procedural due process. — Where the owner of a motor vehicle received notice of two speeding violations and fines pursuant to a municipality's red light camera ordinance; the violations were observed by video detection equipment; at an administrative hearing, the owner did not contest the fact that the video equipment had observed vehicles registered in the owner's name speeding on the dates in question; the owner claimed that the owner was not the driver of the vehicle and presented evidence that the owner was not in the municipality on the dates of the violations; the owner did not nominate the actual driver of the vehicle on the dates of the violations as permitted by the ordinance or claim any of the defense provided for in the ordinance; and the ordinance provided that the registered owner of a vehicle observed violating the ordinance was strictly and vicariously liable for the violation, the imposition of penalties on the owner for violation of the ordinance was legal and constitutional. Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Municipality had authority to enact a red light camera ordinance. — Where a municipality's determination that red light violations and speeding are public nuisances was premised on findings that there was a significant risk to health and safety of the community from drivers who run red lights and exceed posted speed limits; that red light violations are a matter of unique local concern to the municipality, because of high traffic volume and crowded intersections; that the municipality had one of the highest fatality and serious injury rates in the nation from red light violations and disregard by drivers for existing state red light laws; that red light violations are connected to death and serious injury to a degree not evident with regard to other traffic violations; that drivers in the municipality repeatedly violate posted speed limits; that state law against speeding was inadequate to preserve public safety in the municipality; and that nationally, red light cameras had decreased red light violations, the municipality's findings proved that speeding and red light violations are nuisances per se and the municipality acted within the scope of its authority under 3-18-17 NMSA 1978 in enacting the red light camera ordinance and designating speeding and red light violations nuisances. Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Residential picketing. — An ordinance declaring residential picketing a nuisance even though such acts violate only private rights and produce damages to but one or a few persons constitutes a valid exercise of governmental power. Garcia v. Gray, 507 F. 2d 539 (10th Cir. 1974), cert. denied, 421 U.S. 971, 95 S. Ct. 1967, 44 L.Ed. 2d 462 (1975).

Loitering on school grounds. — To interpret a city ordinance prohibiting loitering on school grounds without lawful business there as saying that no one had the right to be on school property without permission would raise serious constitutional questions, where the ordinance did not state that permission to be on school grounds was required. Anderson v. Shaver, 290 F. Supp. 920 (D.N.M. 1968).

Solicitors. — The frequent ringing of doorbells of private residences by itinerant vendors and solicitors may be in fact a nuisance to the occupants of homes, or may be so considered by the municipality in one locality. Green v. Town of Gallup, 1941-NMSC-050, 46 N.M. 71, 120 P.2d 619.

Sunday dances. — The intention of the legislature is clear in that cities and towns have the authority to license, regulate and prohibit the giving or holding of dances on Sunday. 1954 Op. Att'y Gen. No. 54-5937 (issued under prior law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Gambling §§ 13 to 22; 53A Am. Jur. 2d Mobs and Riots §§ 1 to 3, 6, 7, 16, 17; 58 Am. Jur. 2d Nuisances §§ 1, 50 to 53, 425.

Liability of municipality for damages or compensation for abating as a nuisance what is not in fact such, 46 A.L.R. 362.

Presentation of claim for injury to property by nuisance, necessity of, 52 A.L.R. 639.

Extension of police power of municipal corporation beyond territorial limits, 55 A.L.R. 1182, 14 A.L.R.2d 103.

Venue of suit to enjoin nuisance, 7 A.L.R.2d 481.

Public regulation and prohibition of sound amplifiers or loudspeaker broadcasts in streets or other public places, 10 A.L.R.2d 627.

Phonograph, loudspeaker or other mechanical or electrical device for broadcasting music, advertising or sales talk from business premises, as nuisance, 23 A.L.R.2d 1289.

Disorderly conduct, failure or refusal to obey police officer's order to move on as, 65 A.L.R.2d 1152.

Coin-operated pinball machines or similar devices, police powers authorizing antigambling laws applicable to, 89 A.L.R.2d 815.

Obscenity, modern concept of, 5 A.L.R.3d 1158.

Obscenity, validity of procedures designed to protect the public against, 5 A.L.R.3d 1214, 93 A.L.R.3d 297.

Gambling devices, constitutionality of statutes providing for destruction of, 14 A.L.R.3d 366.

Validity and construction of statutes or ordinances prohibiting profanity or profane swearing or cursing, 5 A.L.R.4th 956.

Validity of statutes or ordinances requiring sex-oriented businesses to obtain operating licenses, 8 A.L.R.4th 130.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking, 53 A.L.R.4th 801.

Validity of statute or ordinance prohibiting or regulating bookmaking or pool selling, 80 A.L.R.4th 1079.

Validity of ordinances restricting location of "adult entertainment" or sex-oriented businesses, 10 A.L.R.5th 538.

Obscenity prosecutions: statutory exemption based on dissemination to persons or entities having scientific, educational, or similar justification for possession of such materials, 13 A.L.R.5th 567.

Validity, construction, and application of loitering statutes and ordinances, 72 A.L.R.5th 1.