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HomeMy WebLinkAbout50B - SIEZURE,IMPOUND,FORFIETUR CITY COUNCIL MEETING DATE: ~ ~ REQUEST FOR COUNCIL ACTION CLERK OF COUNCIL USE ONLY: FEBRUARY 22, 2005 APPROVED TITLE: ORDINANCE REGULATING THE SEIZURE, IMPOUND, AND FORFEITURE OF VEHICLES o As Recommended o As Amended o Ordinance on 15t Reading o Ordinance on 2nd Reading o Implementing Resolution o Set Public Hearing For .; /\// . U.~j7a ITV MANAGER CONTINUED TO FILE NUMBER RECOMMENDED ACTION Adopt an Ordinance adding sections 10-600 through 10-611 to the Santa Ana Municipal Code regulating the seizure, impound and forfeiture of vehicles used to solicitor to engage in acts of prostitution or illegal drug activity. DISCUSSION In accordance with the City's commitment to quality service and continuous improvement, the departments frequently analyze existing procedures and practices to determine if enhancements can be implemented. Recognizing that prostitution and illegal drug activity frequently involves the use of vehicles as a means to engage in criminal activities, the Police Department recommends establishing a new ordinance that would deter the commission of such crimes and serve to abate the nuisance caused by these illegal activities. Under the provisions of the proposed ordinance, vehicles used to facilitate acts of prostitution or to engage in illegal drug transactions would be subject to seizure, impoundment, and forfeiture. FISCAL IMPACT There is no fiscal impact associated with this action. j f. i 1\ "--.Ie u..--ll '0 ~.. Paul M. Walters Chief of Police Police Department 508-1 , (PJC 1/25/05) ORDINANCE NO. NS-2679 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADDING ARTICLE XI- SEIZURE, IMPOUNDMENT AND FORFEITURE OF VEHICLES, SECTIONS 10-600 THROUGH 10-611 TO THE SANTA ANA MUNICIPAL CODE RELATING TO SEIZURE, IMPOUNDMENT AND FORFEITURE OF VEHICLES USED TO SOLICIT OR TO ENGAGE IN ACTS OF PROSTITUTION OR ILLEGAL DRUG ACTIVITY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The residents and business owners of the City of Santa Ana have complained that a nuisance is created in their community by vehicles that are being used for the purposes of illegal drug activity and soliciting or committing acts of prostitution; and B. Persons who use vehicles to solicit or to engage in acts of prostitution or illegal drug activity contribute to blight and increased crime in Santa Ana; and C. Vehicles facilitate the commission of crimes involved with prostitution. Vehicles provide cover to those engaged in soliciting prostitution. Vehicles transport prostitutes and customers onto streets of the City where the vehicle is used as a place to engage in acts of prostitution. The seizure, impoundment and forfeiture of vehicles used in this manner will deter the commission of such crimes and serve to abate the nuisance(s) caused by these illegal activities; and D. Vehicles facilitate the commission of crimes involved with illegal drug activity. Vehicles provide cover to those engaged in buying illegal drugs. Drug purchasers cruise City streets seeking to purchase drugs from drug dealers. Drug dealers use vehicles parked on City streets to hide their drugs and conduct drug sales, exposing members of the community to the violence that often occurs between drug dealers and those individuals purchasing drugs. The seizure, impoundment and forfeiture of vehicles used in this manner will deter the commission of 1 508-2 such crimes and serve to abate the nuisance(s) caused by these illegal activities. Section 2. In accordance with the California Environmental Quality Act (CEQA), adoption of this ordinance does not meet the definition of a "project" under CEQA, as such, the proposed project is exempt from further review per Public Resources Code Section 21065. Section 3. Article XI, Sections 10-600 through 10-611 are hereby added relating to the seizure, impoundment and forfeiture of vehicles: ARTICLE XI SEIZURE, IMPOUNDMENT AND FORFEITURE OF VEHICLES Sec. 10-600. Definitions For the purposes of this chapter, the following words and phrases shall be construed to have the meanings herein set forth. (a) "Abate" and "abatement" mean an action to seize, impound, forfeit or otherwise remedy a nuisance related activity or condition by such means and in such manner as is necessary to protect the health, safety or general welfare of the public. (b) "Community Property" means an interest in property as defined in California Family Code section 760. (c) "Vehicle" means any transportation device as defined in California Vehicle Code section 670. (d) "Prostitution" means engaging in lewd or sexual conduct for money or other consideration as defined in the California Penal Code. (e) "Business day" means a day that Santa Ana City Hall is open to conduct public business. (f) As used herein, "drug activity" means the purchase or possession of any illegal controlled substance as defined in the California Health & Safety Code or the California Penal Code. 2 508-3 Sec. 10-601. Nuisance vehicles. (a) Any vehicle used to solicit an act of prostitution or in an attempt to solicit an act of prostitution, or used to engage in an act of prostitution, or to loiter for the purpose of soliciting an act of prostitution is hereby declared a public nuisance and may be enjoined and abated as provided herein. (b) Any vehicle used to acquire or in an attempt to acquire a controlled substance, is declared to be a public nuisance and shall be enjoined and abated as provided herein. (c) Any person or his or her servant, agent, or employee who owns, leases, conducts or maintains any vehicle used for any of the purposes or acts set forth in this section is responsible for creating a public nuisance. Sec. 10-602. Seizure of vehicles. (a) A peace officer may seize a vehicle subject to forfeiture under the following circumstances: (1) Upon the issuance of a forfeiture order by a court having jurisdiction over the vehicle. (2) Incident to an arrest for any offense related to the illegal activities descri bed in section 1 0-60 1 (a) or section 10-601 (b). (3) Incident to a valid search warrant for any offense related to the illegal activities described in section 10-601(a) or section 10-601(b). (4) When there is probable cause to believe the vehicle was used in violation of this chapter. (b) A peace officer seizing a vehicle under this section shall complete a receipt in accordance with Penal Code section 1412 and deliver it to the person from whose possession the vehicle was seized. Sec. 10-603. Title to vest in the City of Santa Ana. Subject to the provisions of this chapter, all rights, title and interest in any vehicle shall vest in the City of Santa Ana immediately upon commission of the act giving rise to the public nuisance as described herein. Unless a 3 508-4 vehicle is released as a result of a post-seizure hearing, a vehicle seized shall be impounded for 30 days regardless of ownership and subject to disposition as provided herein. Sec. 10-604. Seizure, impoundment, notice, and post-seizure hearing procedure. (a) Except as provided herein, all vehicles seized shall be impounded for not less than 30 days. If the Police Chief does not order a vehicle forfeited it shall be released to the registered owner(s), legal owner(s) or to an authorized agent subject to the payment of fees and costs arising from impoundment. (b) Within two business days following the day of seizure of the vehicle, the Police Department shall send notice of seizure and impoundment by certified mail, return receipt requested, to each registered and legal owner of the vehicle at the address as shown in the records of California Department of Motor Vehicles or records of the state in which the vehicle is registered, informing the registered and legal owner(s) that the vehicle has been seized, impounded and may be subject to forfeiture. (c) If a vehicle is impounded for 30 days and thereafter is not claimed by the registered owner(s), the legal owner(s) or an authorized agent, within 30 days of issuance of the notice in 1 0-604(b), the City will sell the vehicle at lien sale to recover the towing and storage charges related to impoundment, any parking fines, penalties, and administrative fees. (d) Notwithstanding any other provisions of this chapter, the registered owner(s) and or the legal owner(s) shall be responsible for all towing and storage charges related to impoundment, any parking fines, penalties, and administrative fees incurred by the registered owner. (e) The City shall not be liable to the registered owner for the release of the vehicle to the legal owner, or the legal owner's agent, provided the legal owner(s) produce documents demonstrating legal ownership of the vehicle at the time of the release. (f) The public agency seizing the vehicle shall provide any potential claimants discovered as a result of the investigation set out in 1 0-604(b) with the opportunity for a post-seizure hearing to determine the validity of the seizure or to seek an early release of the vehicle based on one of the criteria set forth in section 10-608(a)-(c). The post-seizure hearing shall be conducted within two business days of the request for the hearing. The 4 508-5 public agency may authorize its own officer or employee to conduct the hearing if the hearing officer is not the same person who directed the seizure of the vehicle. Failure of the potential claimant to request or attend a scheduled hearing within the appropriate time frame shall satisfy the post-seizure requirement. Sec. 10-605. Vehicles held as evidence. A vehicle seized pursuant to this chapter, where appropriate may be held as evidence in any proceeding brought by the District Attorney. Sec. 10-606. Forfeiture. Subject to the provisions of this chapter, the Chief of Police may order the forfeiture of a vehicle seized and impounded as follows: (a) An Order of Forfeiture shall include: (1) A statement by the Chief of Police declaring the vehicle forfeited to the City. (2) A description of the vehicle. (3) The date and place of seizure. (4) The unlawful act(s) alleged as the basis for forfeiture of the vehicle. (5) Instructions and a form for filing a Claim Opposing Forfeiture. (6) The time limits for filing a Claim Opposing Forfeiture. (7) An estimate of the value of the vehicle. (b) The Order of Forfeiture shall be served as follows: (1) The Order of Forfeiture shall be served by personal delivery or certified mail, return receipt requested, upon all registered and legal owners of the vehicle. (2) In the event that a registered or legal owner refuses to accept certified return mail or cannot be personally served, service may be made by substituted service. Substituted service may be accomplished by anyone of the following methods: 5 508-6 (i) By leaving a copy of the Order of Forfeiture at the registered or legal owner(s) dwelling or usual place of abode, in the presence of a competent member of the household and thereafter mailing by first class mail a copy to the registered or legal owner(s) where the copy was left. (ii) By leaving a copy of the Order of Forfeiture during usual business hours at the registered or legal owner(s) business address with the person who is apparently in charge and thereafter mailing by first class mail a copy to the registered or legal owner(s) where the copy was left. (3) If the registered or legal owner(s) lives or is located out of state and will not accept certified return receipt mail, then service may be made by first class mail. (4) If the registered or legal owner(s) cannot be located, or service cannot be affected as set forth in this subsection, service may be made by publication in a local newspaper of general circulation. Service shall be deemed sufficient when it is accomplished pursuant to Government Code Section 6063. (c) An Order of Forfeiture shall be served as soon as practicable, but no later than 30 days following the date the vehicle was seized. If the Chief of Police fails to order the forfeiture of the vehicle within the 30 days, the vehicle shall be released to the registered owner(s), legal owner(s) or an authorized agent at the end of the 30 day impoundment subject to the payment of fees and costs arising from impoundment. (d) If no Claim Opposing Forfeiture is timely filed pursuant to section 10- 607, the Chief of Police shall prepare a written declaration of forfeiture of the vehicle to the City and dispose of the vehicle as provided by this chapter. A written declaration of forfeiture signed by the Chief of Police under this chapter shall be deemed to provide good and sufficient title to the purchaser of the forfeited vehicle. A copy of the declaration of forfeiture shall be mailed to the person listed in the receipt given at the time of seizure and to all registered and legal owners of the vehicle. (e) If a Claim Opposing Forfeiture is timely filed pursuant to section 10- 607, then the Chief of Police shall request the City Attorney to file a petition of forfeiture with the Superior Court within 30 days of the receipt of the claim(s). The petition of forfeiture shall seek a court order adjudging that 6 508-7 the vehicle was used for one or more of the nuisance purposes set forth herein, that the vehicle is a public nuisance and ordering the vehicle be forfeited, sold, and the proceeds distributed as set forth herein. A copy of the petition of forfeiture shall be mailed to each person filing a Claim Opposing Forfeiture. Sec. 10-607. Claim opposing forfeiture. (a) A person opposing an Order of Forfeiture for a vehicle seized pursuant to this chapter must file a Claim Opposing Forfeiture. (b) If the Order of Forfeiture was served by personal or substitute service, the time for filing a Claim Opposing Forfeiture is ten calendar days. (c) If the Order of Forfeiture was served by publication, the time for filing a Claim Opposing Forfeiture is 30 calendar days from the date of first publication of the Order of Forfeiture. (d) If the last day to file a Claim Opposing Forfeiture falls on a day that Police Department is closed, then the Claim Opposing Forfeiture must be filed no later than the close of business on the next business day for the city. (e) The provisions of California Code of Civil Procedure section 1013 shall apply to this service of the Order of Forfeiture pursuant to this section. (f) Each person filing a Claim Opposing Forfeiture must state what ownership interest they have in the vehicle. (g) All Claims Opposing Forfeiture must be filed with the Office of the Chief, Santa Ana Police Department. (h) With respect to vehicles for which forfeiture is sought and as to which forfeiture is contested, the City Attorney shall have the burden of proving by a preponderance of the evidence that the vehicle was used in violation of this chapter. 7 508-8 Sec. 10-608. Vehicles not subject to forfeiture. (a) A vehicle is not subject to the 30 day impoundment or forfeiture and the City shall release a vehicle to the registered owner or legal owners or to an authorized agent under any of the following circumstances: (1) When the vehicle was a stolen vehicle. (2) When the vehicle is subject to bailment and was driven by an employee of the bailee; such as a parking lot attendant or a garage mechanic. (b) A vehicle is not subject to forfeiture if a community property interest existed in such vehicle prior to the act giving rise to the nuisance under this chapter and the community property interest owner meets all of the following requirements: (1) The community property interest owner requests release of the vehicle from the Chief of Police prior to disposal of the vehicle by forfeiture. (2) The community property interest owner submits proof to the Chief of Police that a community property interest existed prior to the date of the act giving rise to the nuisance. (3) The community property interest owner submits proof to the Chief of Police that the vehicle is the only vehicle available to them and that the vehicle is one that may be operated with a class C driver's license. (4) The community property interest holder submits proof to the Chief of Police that he or she, or an authorized driver other than a defendant in any criminal trial arising out of the act giving rise to the nuisance, is properly licensed and that the seized vehicle is properly registered and insured pursuant to the California Vehicle Code. (5) The community property interest holder is not a criminal suspect in a police investigation of the act giving rise to the nuisance under this chapter. (6) All towing and storage charges related to the seizure and impoundment and any administrative charges authorized by law are paid. (7) The community property interest owner signs a stipulated vehicle release agreement, in consideration for which the vehicle will not be forfeited. This requirement applies only if the community property owner requests release of the vehicle under this section. 8 508-9 (c) A vehicle is not subject to forfeiture if the registered owner(s) or legal owner(s) of the vehicle is a rental car company and at the time of the seizure of the vehicle it was rented for a period of 30 days or less. The rental car company shall pay all towing and storage charges related to the seizure and impoundment and any administrative charges authorized by law. (d) Prior to release of a vehicle to a person identified in subsections (a)- (c) of this section, a hold harmless agreement shall be executed by such person. Sec. 10-609. Recovery of monetary loss. Nothing herein shall preclude an owner of a vehicle who suffers a monetary loss from the forfeiture of a vehicle under this section from recovering the amount of the actual monetary loss from the person who committed the act giving rise to forfeiture under this chapter. Sec. 10-610. Disposal of vehicle and distribution of proceeds. (a) In all cases where vehicles seized pursuant to this chapter are forfeited to the City, the vehicles shall be sold, or otherwise disposed of, the proceeds shall be distributed and appropriated as follows: (1) To any lender, finance company or lien holder with an interest in the vehicle, if any, up to the amount of security interest in the vehicle. (2) Each department of the city that incurred costs related to the seizure, impoundment, forfeiture and disposal of the vehicle shall be reimbursed. (3) All remaining proceeds shall be distributed to the general fund. (4) The funds distributed to a City Department pursuant to this section shall not supplant any funds that would, in the absence of this section, be made available to support those departments. Sec. 10-611. Alternative settlement procedures. Any person, or his or her servant, agent or employee who owns, leases, conducts, uses or maintains any vehicle which has been seized in accordance with this chapter may request to execute a voluntary settlement agreement with the City for the return of the vehicle. Such request may be made in writing or verbally to the City Attorney's office. The minimum amount of the settlement fee shall be sufficient to cover all of the City's reasonable administrative costs, including attorney's fees and 9 508-10 personnel time for the seizure and forfeiture action. The actual amount shall be at the sole and absolute discretion of the City Attorney. The executed settlement agreement shall be accompanied by the appropriate settlement fee amount in the form of a money order or cashier's check. All settlements funded shall be distributed as set forth in Section 10-610 (a)(2) and (a)(3). Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 5. The city clerk shall certify to the adoption of this ordinance and cause the same to be published in the manner prescribed by law. ADOPTED this day of ,2005 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Paula J. Coleman Assistant City Attorney 10 508-11 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-2679 to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 508-12