HomeMy WebLinkAboutNS-2679 - Adding Article Xi-Seizure, Impoundment and Forfeiture of Vehicles, Sections 10-600 Through 10-611 to the Santa Ana Municipal Code Relating to Seizure, Impoundmen and Forfeiture of Vehicles Used...
(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 such crimes and serve to abate the nuisance(s)
caused by these illegal activities.
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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 throuqh 10-611 are hereby added relatinq 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.
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.
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(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 )
the vehicle.
Upon the issuance of a forfeiture order by a court having jurisdiction over
(2) Incident to an arrest for any offense related to the illegal activities
described in section 1 0-601 (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 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
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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 10-604(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 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. Foñeiture.
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.
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(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:
(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
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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 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 foñeiture.
(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.
Ordinance NS-2679
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Sec. 10-608. Vehicles not subject to foñeiture.
(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.
(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.
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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 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 anyone or more
sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
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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 ¡th day of March, 2005
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher ttorney
y
AYES:Councilmembers:
Alvarez. Bist. Christy. Bustamante. Garcia. Pulido.
Solorio (7)
NOES: Councilmembers: None (0)
ABSENT: Council members: None (0)
ABSTAIN: Councilmembers: None (0)
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 March 7. 2005, and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: :;/;0~
.7 -, ff
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Clerk of the Council
City of Santa Ana
Ordinance NS-2679
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